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HomeMy WebLinkAbout2051 MAIN STREET (5) c7 OSl rYlcY i n 61 . o/ -p 3 1cf3 (0-,ThEks, Town of Barnstable 90 , STA , : Regulatory Services 44D MAr/,� Thomas F. Geiler,Director Building Division Tom Perry Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 July 30, 2003 Mr. &Mrs. Victor Cillis 2051 Main Street W. Barnstable,MA 02668 Re: 2051 Main Street,W. Barnstable Dear Mr. &Mrs. Cillis: We have been notified by Paulette Theresa McAuliffe at the accessory affordable housing program that your Amnesty Comprehensive Permit has expired. Therefore, you are hereby ordered to discontinue the use of the above-referenced property as it is now being used and restore it to a single-family home. You are to accomplish this work and notify this office to inspect within fourteen (14) days of receipt of this letter. A building permit must be applied for to restore the layout to accommodate the conversion. You must do this bef3re you make any changes. If you have any further questions,please call Lois Barry,Division Assistant, at 508 862-4039. Sincerely, Thomas Perry Building Commissioner TP/lb cc: P. McAuliffe CERTIFIED MA1L7002 0510 0003 5436 1887 Q030730c the above listed ��^� �,J �� the averments contained in VA (nut and hereto. and Edge `� paragraphs. at Diam c`��� facilities ent. Her self school and boarding of employment. , 25. The ridingr plaintiff's sole source therapeutic and .� employment are the p crucial therap with and emotionalthwie has also had a benefit she has been strugglingf Vi benefit to her as long term illness. Diamond debilitating. of business x to remove the horses from forced put out 26. If. the•plaintiff is immediately be clients, she will imm Edge Farm, then breach of contract with laced in assortment of claims.Vipot potentially ly exposing ing her to an potentially exp d ►s interactions with ` the plaintiff to consider € bout the course of it has refuseddto completely 27 . Throughout order the defendant Board Htol its current reasonables remove all horses. the board, and draconian measures by capricious, plaintiff's business, 28. Such wanton, shut down the p business, immediately to the plaintiff• - -- � which would arable harm of Barnstable, 433 would constitute hrypBoard of Health Manes ement 2001) • $ ' Mass. 217 ( complaint because the ,' prevail in her comp plaintiff should P osition 29, The Psupport her p ,a' ., � facts and law policy supports the plaintiff's position. •i ',. 30. Public P LY REQUESTS THAT THIS HONORp�gLE WHEREFORE, THE PLAINTIFF RESPECTFULLY COURT: rohibiting the Barnstable of enforcement prohibiting January 30, 2004, (a) Issue ofa stayHe executing removal Board Revocation fro o f Stable License demanding .,$ Edge Farm. because even if- Notice horses athanyons a result of the of the the Diamond plaintiff will suffer far t the defendanting stay,rthe granted; granting the stay is not greater harm if . -65, and Superior Court Rule M.R.C.P. after issuance of a (b) In accordance dul th a•hearing be held c 3 schedule Preliminary Injunction; stay)of)enforeement on a security or the plaintiff of any • any pmyment_ bYamong other reasons, (c) WaiveodR•C•p• . 65(c) because, cannot reason bond under M.R.C.P. of case the defendants bly in show this c or damages that may be incurred or any' costs 6 era 1:20CTiv101U 76c-( 9904 v--ct c?U' 12 V if CL a 4 ' Cat u-.p , v'k. case��.�,:�. P Ga e/�� fe 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. , PEPESIIAZARD_LLP LAW OFFICES ,2D5/ ern S7/ /<) 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 March 10, 1999 Mr. Ralph M. Crossen Building Commissioner Town of Barnstable 367 Main Street Hyannis, Massachusetts 02601 re: March 5, 1999 letter Dear Mr. Crossen: Thank you for your letter of March 5, 1999. For the record, I point out that my client disagrees with your characterization in that letter that the riding of horses "for money" is "unrelated to the main operation." As set forth in the attached appeal, a copy of which is provided for your file, and which was filed on Monday, March 8, 1999, the offering of riding instruction and riding is a permissible agricultural use, as well as a permissible incidental and accessory use to the primary operation of the farm, which is the raising, keeping and boarding of horses, pursuant to the General Laws of the Commonwealth, including: c. 40A, §3; c. 61A, §1; c. 111, §1; c. 128, §§1A, 2, 2A, 2B, and 2D. Thank you for your attention in this matter. Ver truly yours, IFF/ /ulie C. Moll y Enclosure cc: Brenda Tri & Victor M. Cillis, M.D. • • ....,•mow BOSTON IH HARTFORD jai SOUTHPORT PEPERHAZARD LLP CO Py LAW OFFICES 150 FEDERAL STREET, 28TH FLOOR BOSTON, MASSACHUSETTS 021 1 0-1 745 617/695-9090 FACSIMILE 617/695-9255 March 8, 1999 Hand Delivery Town Clerk Zoning Board of Appeals Town of Barnstable Town of Barnstable 367 Main Street 367 Main Street Hyannis, MA 02601 Hyannis, MA 02601 Re: Appeal of Brenda Tri and Victor Cillis, M.D. of Cease & Desist Order of Building Commissioner Issued February 5, 1999 Dear Sir or Madam: Enclosed for filing please find three copies of an appeal package relative to the above-captioned matter, one for the Town Clerk, and two copies for the Zoning Board of Appeals. If there are any questions, please do not hesitate to contact me. Very truly yours, Julie C. Molloy Enclosures cc: Brenda Tri & Victor Cillis, M.D. BOSTON I1 HARTFORD IH SOUTHPORT V 1 THEBEEN D ZONING ETERMINED RELIEF BEING SOUGHT HA,? By THE ZONING ENFORCEMENT'OFFICER TO BE APPROPRIATE RELIEF G OF BARntBTABir CIRCUMSTA.yCEe N• SE Zoning Hoard of•Appealb . Appl�.catiog for Other Powers Date Received . • For off joe_use wan Town clerk Office •Appeal O. �— • -searing Date • .Decision PRO • The undersigned hereby applies to the zoning• Board of Appeals for the reaaonn indicated: • . Applicant Names Brenda Trj_Ana v; r+•.,r r; , , ; , Phone ( 508.1_362,-15Fi2 Applicant Addresas 2051 Main Street, Le +: Rarrc+abler• MA natir Property Locations SAXIP This is a request for: [] Enforcement Action 01 Appeal of Administrative officials DecieiOn . [] Repetitive petitions - ' [] Appeal from the Zoning Administrator [) other General powers .-.Please specify: _ - Plense Provide the Following Information (as. applicable): Property Owner: same a a_ •, Phone Address of owner: -see abov Xf•applicant differs from owner, state'nature of interest: Assessor's Map/Parcel Number '• - Zoning District • , RF • Groundwater overlay District • which section(0) of the zoning ordinance and/or of MOL chapter 40A are you , ' appealing to the Zoning Boar Appeals? - • ..-- a Existing Level of Development oZ the Property r Number of Buildings: 3 Bq' ft. present Oae(B)s ' 122s ' . Grose Floor Areas .. E d 88Z9 06L 805 ON XVd n� 101 '9KINNVTd 'a1HVLSN VH Yid H:6 ZVS 66-9 —NI • Application for Other PoWerq - . ., Nature i Description of Request: -4-.2-2-L-6U1-* 11X 0,�� Attached separate 'Mimi if needed. Is the property located in an Historic District? ' • YOU (X] No: [] If yea O B Una ogle: Play Review Number Date Approved • - - - _ • Is the building a designated Historic Landmark? Yes I NA XIX It yes is i Prose tion De ar nt use onl : . Date Approved Has a building permit been applied for? • • Yea (] No 14 Has the Building Inspector refused a permit? Yea [] No I /� Has the property been before Site plan Review?. Yea [] No Ed • _ For_ 3il4jfS_Department Use only: • Not Required - single Family El - Site Plan Review Number „ Date Approved ,., _ • signature: . • 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 etanding before the Board and for clear understanding of your appeal. The applicant may submit any additional supporting documenta to assist the Boar making its determination. • signature: Date: 3/8/9 9 A 2tcant or Age 'a Si attires • Agent•S Address:. . Pepe & Hazard LL phone; (617) 695090 156 Federal Street Pax No. (617) 695-9255 - BOston, MA. 02110 — i 'd 9E9 06L 80S '0N XVd d3Q 'ONINNV1d 'HTHV,LSNBVH Yid SE:E 1,VS 66-9 -BVYi • 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 hundzed. (300) feet of the property lines of the subject property. • Assessor's • Map & Parcel Number Owner's Name Address • • • • • • * NOTICE * • • 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. • • • 5 d 8E9 06L 80S '0N XVd 1,d8Q •9NINNV'Id •a'IHVI,SNBVH Yid 58:E 1,VS 66-9 -EVW A 1 ,4s,_ The Town ®f !:�arnstab1e fe BARNSPABLE, • a'�; ��' Department of Health Safety and Environmental Services A'FD '' 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 encloses 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 339 592 443 R.R.R. g990205a B �. B 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. 1 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, 1A, 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, keep and board equines of varying 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 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. Modern Continental 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 riders. 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. 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. Modern 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. 41111 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. 1A, 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. Modem 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 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, 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 61A, 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. • I I „ .', r ''s s y,§.. r r ,f4: w� C n_4 1 , 'Y ' 3 1 rib h t e+� so r ,_ l„x '' - l j'''-, ' 'x',� i l 6' 'ts y.LkfQY' k m .fir r .�. 'h.`;-,w°. ,q7#ts, w. 'g .t ”' xVrr tc `MAl y '.,gym, `ifi!6e 'tom . ;fj,� $ °$: ._ , ..x.'Ar ! s r ..0'A.r��-sud��3 k•�-�. t A3i ,f,`�. �' ,'' 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 4r equalization. 21. Factual details shown on tax list of board of assessors relative 4# to agricultural, etc., lands to be same as that of other " taxable property. t -, 22. Commissioner of revenue to promulgate rules and regulations, " forms and procedures. 'r•. i 23. Tax evasion; penalty. 1 24. Severability provision. I 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, �r. • r`" parallel references, prior and later history, and ar nota- ; Y,� -, ` tion references. Use SHOWME to display the full text of cases and annotations. + § 1. When Land Deemed to be in Agricultural Use. ''','' s Land shall be deemed to be in agricultural use when primarily and directly used in raising animals, including, but not limited to, dairy . ,: 5 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 1`" ie which is incidental thereto and represents a customary and necessary ; use in raising such animals and preparing them or the products a,n .i derived therefrom for market. (1973, 1118, § 1.) , ., ' Y 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 T•` Laws,inserted by section one of this act,applications under section six of said chapter .o.. 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 9 the boards of assessors shall forward notices of disallowance, if any, on or before July i 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 it thirtieth, nineteen hundred and seventy-five and said value ranges shall be mailed by +' 4-0 . _2 j ,noS . Wc) Pro(3-e�-�( t i 'i q -�.t t ,,+'h�• - `„ � ir, `3+aro +rat k et wrr t f' 'lr'ttLec t > `? s y '�; `;*G.� � .:��r`�'Y !ti ?' � ��'�`�i�ttw'i�`�`;�"�di'�A�•'� 4"r .�; `+ /x�fdP{yt�i:` �'a�' '�#.v3"..� 1 r { ,, § 2 TAXATION OF AGRICULTURAL LANDS C. 61A { cyr'� �kC,4 _ It l i i, y N . '„ the commissioner of corporations and taxation to the boards of assessors on or before 4 't' April first,nineteen hundred and seventy-four.. i ' '`s SECTION 3. The provisions of this act shall apply to fiscal years ending June r' ` thirtieth,nineteen hundred and seventy-five and thereafter. is ,r �� . Cross References— 7- This chapter is referred to in ALM GL c 59 §2A, dealing with use classification of ,'2.; real property for assessment of local taxes. t '' sxr` #, -./Y _: Code of Massachusetts Regulations— Land use: rules and regulations for farm land,330 CMR 18.01. r r ;', v fit. v' J7 Total Client-Service Library®References— 4. 3 Am Jur 2d,Agriculture§9. ` � sad 1 � 71 Am Jur 2d,State and Local Taxation§§60, 188. f r K > t Ott - " n at*, j z r , ' t Annotations— r Real-estate tax equalization, reassessment, or revaluation program commenced but J r • • • < �i not completed within the year, as violative of constitutional provisions requiring equal �t x and uniform taxation.76 ALR2d 1077. 1 ,r �ft °'t ; Prospective use for tax-exempt purposes as entitling property to tax exemption. 54 :~ x ,y�3 y of ALR3d t 1� '� Validity, construction, and effect of state statutes affording preferential property s ...-gs. , )4 /; tax treatment to land used for agricultural purposes.98 ALR3d 916. 4 t - S ; �' a,, - f i + S K q €F '�, Texts— i' :` t n Marzelli, Massachusetts Real Estate,§§5:1-5:6., x: si� ra;e Mendler,Massachusetts Conveyancers' Handbook with Forms,§§13:1-13:9. z r roc _ CY CASE NOTES ' s, - Appellate Tax Board correctly decided (1986)398 Mass 821,501 NE2d 506. t' if s { ' that land on island between Buzzards Land contiguous to land directly used ',+ { z .4 },'r Bay and Vineyard Sound was devoted to for agriculture need not be included in F T,'@---,..`'. , . :;:r .. aagricultural use or was contiguous determining reveue requirements under 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. ' I . § 2. When Land Deemed to be in Horticultural Use. ff !`' " ` Land shall be deemed to be in horticultural use when primarily and �a ;� 3, {, directly used in raising fruits, vegetables, berries, nuts and other i ,t ; ,.. foods for human consumption, feed for animals, tobacco, flowers, sod, '± a r; ' trees, nursery or greenhouse products, and ornamental plants and i �1 shrubs for the purpose of selling such products in the regular course ! an.' 41 . 1 4 , gsz.bvti --- -;-1S,I.'4,,N,:-,,..;•;-,-„,---.. ,1' T 4lu -.R p+fir l _. ii k ., f 144,1S}1".;-:.':.:.:,:'-!',.-,'.rick: ' yhw t Y;t FJ } 1I_}4i i : �.J,Ak':" w t S'4'4" •..rrqdii,,,.;?'�PT'„4,�'� as. .5,'_r°-4.as,,,4 �`.,v� ,F"` x+sh `t✓.`C3` s� ",.. �l.� � . .M 2 2 • 5'i a? ' '" '''4F 6,..�i.-r, t at o^•, r�3. n , .,-,. ,.. r + .+.1.-1?"; f x5 •.'crK r ��! 4H#' 9.;fa�r"1Y wry.:a ry a,�;* „+ r F. f {' C. 111 ANNOTATED LAWS OF MASSACHUSETTS L § 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. i - Auto-Cite®:Cases and annotations referred to herein can be fur- ther researched through the Auto-Cite® computer-assisted t research service. Use Auto-Cite to check citations for form, 4. parallel references, prior and later history, and annotation r•§, references. A. t r; f — j DEFINITIONS 1. Definitions. r j The following words as used in this chapter, unless a different '".-Aa; meaning is required by the context or is specifically prescribed, shall have the following meanings: a "Board of health" shall include the board or officer having like 1. t ' powers and duties in towns where there is no board of health. t c "Commissioner," the commissioner of public health. `, "Council," the public health council of the department of public k it. t health. r "Department," the department of public health. , "Disease dangerous to the public health" shall include all diseases i defined as such in accordance with section six. "Farming" or "Agriculture" shall include farming in all its i . 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 F, 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 rg `v� f, 20 11 r a .'� '' i } a i' a. - _ #?a _�''°!t i'h`'a�.'r9._;'..w'... ';'-,"'�`'_ ::!'�` '^?.. • Z41 Wfrltc y '•s5.?'" 'ih * T °‘ u {i: • r v,; .� z.i, C • •��, .rc 3r Sr 4� " < a M Y f, v , r 3 ,,,'c4 ri r li YA 1.• PUBLIC HEALTH C. 111 `3, farming operations, including preparations for market, delivery to €iA s , storage, or to market or to carriers for transportation to market. �z "Health care provider", any doctor of medicine, osteopathy, or /1,, v •r ' dental science, or a registered nurse, social worker, doctor of chi- ', Al." ropractic, or psychologist licensed under the provisions of chapter i' , 1.1 one hundred and twelve, or an intern, or a resident, fellow, or t t�r F medical officer licensed under section nine of said chapter one 151„t� � hundred and twelve, or a hospital, clinic or nursing home licensed i,:s under the provisions of chapter one hundred and eleven and its her` agents and employees. �,. "Inland waters" shall include any and all lakes, ponds, streams, i4 'pa ;-' A • ', e_ , tidal waters and flats, and underground waters. l; 4`' f 3 t ., • ''''.r yam. "Medical peer review committee" or"committee", a committee of k , 4 airq d '_ y. a'state or local professional society of health care providers, j; � tx� r ' including doctors of chiropractic, or of a medical staff of a licensed !' t o•,..'€ ' •, /, hospital or nursing home or health maintenance organization ; 10.I '. !Ti,hK V r 1',, ,., organized under chapter one hundred and seventy-six G, provided ,,;+ a the medical staff operatespursuant to written by-laws that have t ; f t� ,a �' P Y .: t ;��.} �.f,� ,Sty � been approved by the governing board of the hospital or nursing ' ,, ', 14 .. home or health maintenance organization, which committee has as .' . ; 411 1811 its function the evaluation or improvement of the quality of health ",_.' _ ,o-rix nr, ,r endered by providers of health care services the determine- hz� ' Nether health care services were performed in compliance ` ' } wit the applicable standards of care, the determination whether F flip„.�'y `,r = i ;a` i t q' -mil tt the cost of health care services were performed in compliance with i �� n ,„ ;, the applicable standards of care, determination whether the cost of F 4 t «a the health care services rendered was considered reasonable by the . €k ,. providers of health services in the area, the determination of y �') - '• '' whether a health care provider's actions call into question such ? s' ;°t yc health care provider's fitness to provide health care services, or the evaluation and assistance of health care providers impaired or al- j, ' r '°°• O i legedly impaired by reason of alcohol, drugs, physical disability, '� tr- 1 ` ,r>z ` mental instability or otherwise; provided, however, that for pur- 4 „ t �*,Vz,f ,. r, poses of sections two hundred and three and two hundred and "d ' four, a nonprofit corporation, the sole voting member of which is � • i a professional society having as members persons who are licensed �;,�6« ,,Vc•7 s i .. to practice medicine, shall be considered a medical peer review i ,,,,,..7 ;�; rj committee; provided, further, that its primary purpose is the I I ', r 5�, '7 ; 4 : i, 4, Fa R , evaluation and assistance of health care providers impaired or al- ��u .. legedly impaired by reason of alcohol, drugs, physical disability : - •, mental instability or otherwise. ti ti "Nuclear reactor", any apparatus, other than an atomic weapon, i ' ; . designed to sustain nuclear fission in a self-supporting chain reac- ' . `' -r- , '' d r • • ' tion. I, f ` ',`., r .,r I `. 21 I ! s•; , ; N r u h+ f,ti tr#A ) 5yr1.t; • , , , ,11.. ', '...„ , tifig• -*i.,:-.',,4i-A;;,%...'''-:;"...:‘ ,`,-'`..'.- �r•' { �y1 ,% + '�1 tot ? c1'� . 3 .r �. .. ' j... q t r ` Y .., me wd' �;,a a.:ti,v.'�""' a..: .y,• r 4<, u a F''a".3L✓ ti-+f *1 6614�'-`= '1,,yg ... w:,.,s.. ,-, 14t.. 1:: r�1 ql. .[. �w +i !r ; .- '"x�..',`,. - yr'r' }'d° .i .ram '� -,. � � a , �,-,3 k � Pl ?� r "s^+, ;` "' , ��'"R � D �'.'rEp. x. ,,c w't gh 4,441.Ev, '4 v+3 .4.i.� 011`: , . S'g . r � t ' ,'.--, r y 4 � r t , p� wy � 4ti • .""'' ' ' ',' ' p :( 'K+. .,+. 'Y',', :',4•"X GF, 1,,.'`", 1i A ur '�' . ' lx.. a Xia 1:. , _t$ ' i z t t tt ' '''' 3 C. 111 ANNOTATED LAWS OF MASSACHUSETTS § 1 s History- t 7, 1938,265, § 6; 1951,448, § 1; 1966, 217; 1979, 796, § 13; 1986, 351, §§ 5, tf, 6; 1987, 467, § 1; 1987, 579, § 1; 1993, 297, approved Dec 16, 1993, effec- tive 90 days thereafter; 1993, 309 §§ 1, 2, approved Dec 17, 1993, effective sx:' 1r 90 days thereafter; 1993, 415, § 1, approved Jan 11, 1994, effective 90 days r ,f thereafter. Editorial Note- '. The 1951 amendment added at the end of the section a paragraph defin- . ' ing"inland waters". ;t. 'r 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. K'`• 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- y tic,"; and by § 2, in the definition of"Medical peer review committee", fol- lowing a, w "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 1'" a` 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 t of alcohol, drugs, physical disability, mental instability or otherwise". Cross References- t r For additional definitions, see §§ 17, 52. Code of Massachusetts Regttlations- ;'''' Implementation of GL cl 11 and 111C regulating the reporting of infec- tious diseases dangerous to the public health, 105 CMR 172.000.47 t 44 Total Client-Service Library® References- 7 Mass Jur, Property § 25:135. } CASE NOTES ' 44 1986 Amendment (St. 1986, c. 351) are confidential and immune from sub- ,". provides that medical peer review com- poena or discovery and that those attend- Q i' mittee proceedings reports and records ing committee meeting shall not be re- .,v. i. 22 ,.1sd5'�. "`y*x4 y"'4 .1 fir. w!`•.NE.+G./f.-�"5P 9 fib'' ;, + ,, ,,5? k- , "_ 't`,. ,,,i -'- C+ ',.,,,ila•`0p4.4R`5 s�4; 5 •I ,T {Y K i ,y Y f -,i,e + t h N '� Y i { , iS' R t' .1]e,. r1 , #$,71.4�' 7i-`-"4--'S7s:7,<t` .r'vt l"" »-' t +r + , �s, s .ai'c t + '. ', '. 2 ? . . ,� aJ'w,.,s i ,r. < S :' a •''rn 4. 9 � *^ E!FJ � F k yr * t .}``+pia 3 i �.. t y�Tw y+.a f i} sr X __s' v# ,.+.`�d -�r::,. r p , a ,f .x �} a ' n - `$'' ' n1111. x.r ! 1iF .70' e- 6 T ill' • • f PUBLIC HEALTH C. 111 ;,;,. +'',-,'.kt quired or allowed to testify about pro- "Agriculture" includes operation of t� Y a ` i'r ceedings. Beth Israel Hospital Asso. v piggery. Building Inspector of Mansfield e� " 1 V Board of Registration in Medicine(1987) v Curvin (1986) 22 Mass App 401, 494 krt 3 ;i M 401 Mass 172, 515 NE2d 574. NE2d 42. jj{{ r }1 4St.ate-f J t §§ 1A, 1B. [Repealed, 1966, 685, § 4.] i" . , i F l;'. ' ,,4". t 5'' ,i • ,v v A a - ' Editorial Note— `1 4 , =t�,i •f j ; .. The 1966 act which repealed the above two sections also established the I f-, i' f• ' k , , x b • .Division of Water Pollution Control in the Department of Natural Resources. 1111f• fir,' .-t ; a+l t> { t :. "''`t'0u' SeeGLc21, §§ 26to53. fi * • ' y�' '...")U-,,IP.,!.. Pri'1,-:',:'' i:',17.'.:.tg.,;,-," .' ' . ,,;?t, .1.,1•J �41 .a ti-47- DUTIES OF THE DEPARTMENT OF PUBLIC HEALTH i v. "" + " ,_ , ' Vi tiff, stiff. 1' ti w r. • .3 :"? . 34 . § `Z. Commissioner of Public Health; Duties. s ' `b•r' ' 1y t r ' ', The commissioner shall administer the laws relative to health and 11 ig fr ,, i"s G Y: - .; sanitation and the regulations of the department, and shall prepare u s 4r,- ,c .',• ,, • t ' ir'� 4:e rules and regulations for the consideration of the council. The secre- $'? •':''., ]a�-,k and the commissioner shall jointly develop and l 1 ;'' '' ' a p tary of elder affairs f 4,4„ ,,-, .1' submit to the council rules and regulations governing the licensure lip •9 ;; , � n 2 and operation of convalescent or nursing homes,rest homes,infirma- f r ;x ' ries maintained in a town and charitable homes for the aged. He may r IV4 t`; '� t f {' 4 z, x direct any executive officer or employee of the department to assist �, �S �.��. t c { F „ xt* 1a in the study, suppression or prevention of disease in any part of the a{{LL= ',,kif ti •� 1 a Y F " x � �I no;tea .�i� fi+'A^ ^��-�;xr' commonwealth. He shall submit annually to the council a report 1' f` ¢ °.ems`? m "' z ti containing recommendations in regard to health legislation. ',: t} '44. ' ;4- ,-- g : 1 e" • The commissioner shall prepare from the birth,marriage and death c aK .. '-�-- records received byhim under the provisions of chapter forty-six,and d r , '` , r� `�; f ,,,,...5 - �o- 1: ,_`: from the divorce returns received by him under the provisions of sec- �t, k i x tion forty-six of chapter two hundred and eight, such statistical tables iw tt , ,: f + ,; �� f� } , as he deems useful, and shall make annual report thereof to the gen '" tr '. ,�(Z°" eral court. The commissioner may transmit such information to the � �n appropriate agency of the federal government to participate in the I °' ` t�.< � ,��, `fir s R; �: development of a cooperative system for producinguniform statisti- t .i, ,i' �:. :. cal information at the federal, state and local level.The commissioner i �1 0 ,.0 t f f ▪` maymake further use of such records as he deems useful for � r 01 administrative and research purposes connected with health pro '1 c ` , • 'z ,' r grams and population studies. He shall, as soon as is reasonablyor to ,r ,g�r s ; practicable, cause the birth, marriage and death records to be bound 1;`: a'23,'r s,� r` �e , with indexes thereto and shall retain their custody. He shall prepare Ilt b 4.a . „r{ s :Y�1'. �' an alphabetical index of such divorce returns showing the names of +1(} r; 5 rt,"7 : ityct r the parties, year and number of the judgment and the county in which the divorce occurred. gill`'`` ' "`` t'; ;` f ' �" ist I,ri. h t0,, l t k ! hr„11}.,, .'�4*T` rt 3�,z; ,N.,..-. 23 G1 T 4 . 4 T7 tI Cr • x r.. f t" 1} a,< `' s.� y�v�i1 �p. K F „54`kJ'�.7t,� M�Y�S �t+)"Lk�.'K-i��. _ 7 a rl r, 1p .•" r '''s'A• 'r.�H'•_ j*FL' '"i rsr ' '•i' ' e.S". .•Y' "P '.�`S-fi, I,-sf''ya',{ f14` �`�y+,7 ,/'.`x?59 ZSk.s�1 i aA..,+]t.+'?? e,444,'-ai,,0140.,YIin.A•iN` k.. -ak -Ec�f.4.1` *:VV:ty a4,; tyy-414$4'g";4ax.';,e4 a�z04.eT4111.0.aivh+ 0s, a .-f.4di:-h :.. 3 '` �. 'O.:. ! 4 i� ' .� -� 7 y " xt ii�f��}},,(:�. r {Y' t v �� 3.� rt x!`Y i h j4...a-i'� �. ,�", >5i'�+'� '� r� a y u { ,,, >�"t- , , ±-'' �.1"t°3$� '+ { ubab t sr`��. x'P a ( 1a" R y^ } 9 a H ; ` � } -� rt '�r,` .7 , . e a ti g- ', i . .° , �', i=:� 'S�5.,.. xY w. Je, �s �. �:. v 7i vt, ;, r- %.7j, y 4E ,:_s ik 't,r �".r r. s c s s ,v �' 1 t"t'� s .�,' '; , '+jai. • 71 i,4.c, `, i " %' :r a e { x v . ' 1'' 7 •t} k b 3i, 1t,' '1, .. F ¢ K . r ' r } ` 1 ,i,�aa 1k'. 111 h P • r J a� s � CUMULATIVE SUPPLEMENT i �• TO Annotated Laws of Massachusetts ' a f; , r ' =' CHAPTERS 111 111D ° ,t a (as recompiled 1995) . , R,tn �, ..f',, .: - . m {� Y F d 'Cfj7 i . •J R}' <5 } TITLE XVI 6} PUBLIC HEALTH ' '''•Ell) } ia,{ } Yx5 rr�{s CHAPTER 111 t �;< cA• � ; Public Health x air s a K.s i' -� 5•# , % �,. y'A'����� f .r� p9y�x t. r r f K t + • YY New Sections Added , ri. ; y} Sec. } f tY ;, ,x ', '• 24F. Health Care Access Fund. z ,;t-'� 1.y,01„ - !,a , ;f z�� `',; 24G. Primary and Preventive Health Care Services for Uninsured f,* V$ . '_ :� Dependent and Adopted Youths. � r 4 ' �. r '� 24H. Managed Care Program Established. , , h"}• t ` i, , i+ • r ; 24I. Universal Immunization Program Established. § ,.,,_ y ;a= 24J. Medical Respite Services Program Established i 142N. Rules and Regulations for Certain Fossil Fuel-fired Electric a,.,, i ; : f.,:, ,: . Generation Facilities. � .1 ; „ 216. Fragrance Advertising Inserts in Newspapers, Magazines, Mailings ,r, x and Other Printed Material Regulated. _ `' tt DEFINITIONS § 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 1-800-446-410. 7 ' iairy !�''`` ` €-� v+E K � S �'+Mzr+ 3 + itsoe'�.ins -k-k >ip it F :3r4 ltU� 3 .r T $ ,ee hkV as #4' ;t ? e'n. Ii4„ w .Y . _,� y.y s 4` ,, . '-� ;., i.e ''4..V♦ , t � " �?t h 4 4Lt e, . M f ,,C si.riti f., f*:r ,' !A ; l'+ t " R h" moT ,"°,f fTeri .y tl 7 3 t t '' t '' r�} o 1x; � ` 13 Y4 r y $44:.-• 4 L{`., .%N dry"S a � f ".,E a Er''✓ �+ x. . u a -fie 1A f vrcat*. .. ;`k... 1; A 4,. -ri:;�tt:het •tr'n.. w ' C. 111 ANNOTATED LAWS OF MASSACHUSETTS [No change through definition "Disease dangerous to the pu 4• health".]. , : [The following three paragraphs are reprinted to correct a punctua '- s» error.] 1 y ; "Commissioner", the commissioner of public health. ` *�` "Council the public 'health council of thee.department of pu 'z' health. izrk.._ , , ' - , - ,-,,,,,./..!-,1::: "Department", the department of piu . [Definition "Farming or Agriculture" s amenblichealthded to read as follows: "Farming" or"agriculture' ,farming in all of its branches and cult tion 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 rai' h - of poultry, swine, cattle and other domes"ticated animals used for f 'e k" :r purposes, bees, fur-bearing animals, and any practices, including ,; forestry or lumbering operations,performed by a farmer,who is her ', . e defined as one engaged in agricultural of farming as herein defined ` `fig on a farm as an incident to or in conjunction with such farming opt " F °�"<--i-4 ; tions, including preparations for market, delivery to storage or =tom market or to carriers for transportation to market. [No change in balance of section.] .1.';.--. History— ` l 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 ..' v 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 r� a agricultural, floricultural or horticultural commodities, the raising of livestock inclut horses,the keeping and raising of poultry,swine,cattle and ocher domesticated animals i t 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 f2 ing or agriculture as herein defined, or on a farm as an incident to or in conjunction € r 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 F mofitteNe on inquiry of Massachusetts chapter c I l l § 1 and §204. Swatch v Treat (if ' ,t ational Association of Social Workers 41 Mass App.559,671 NE2d 1004. s DUTIES OF THE DEPARTMENT OF PUBLIC HEALTH i § 2. Commissioner of Public Health; Duties. ` [For text of section, see parent volume.] 4 :, Editorial Note— ft' Acts 1985, Ch. 728, Hi1-8, 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 - x r ' For later statutes and case citations,see Quarterly Update Pamphlets. , ;-ing m - rU -t ,F.., er,''.ca' v CIt: a � '-;i +•a ,'{ 1 a'?; WZ + .� �53e ' ^v r, 'h M1y t « - x • :,;, . `, �., >� , ' c .;n �rX ! e .i ' „.i4 ,� rk, , ,r,' a,rry i v , ,.$9, rph�t k yYa e 5, .., 4 ' ,,e} 43 rl, 7 q t', Y.y r 7� ray i :v. Y .+ '" ,, M ,..'telt', P'I T 4 L'°"0.Aj�'1•yi- "'9R�h"-# r0,14' V �} £�� x • 3'-Y4'+i , i 7..t f 1` •3`'f 'd ,- `° A ; l `�` ` W .. '` max y ,'-' ' i ti t 4,' `� + vim'',,: • C if.,;.,., r.via r P u ,fir y �� • �.: .'g� 4 is : 1 j I• r' de'ALA Y V A t r 1`.", ..tilt`"�. i - i , �'t•j� }E l' F x 1 Z.. ' Ea tt} ' n f n� $'pn C. 111 ANNOTATED LAWS OF MASSACHUSETTS § 1 f4 rtlC i. "1"; fi Alt `.' ' Code of Massachusetts Regulations— ,, /;' a 1 Rabies vaccinations, 105 CMR §§ 330.001 et seq. „,-. , . --.,,tr,-,,i:,-,.'•r ,-,-e £ , Total Client-Service Library® References— �r'. ,R k { # 58 Ain Jur 2d, Nuisances §§ 71. s 59 Am Jur 2d, Health §§ 25 et seq. r . '1 e % 3 82 Am ur 2d, Zonin and Plannin J g g §§ 39, 44, 45, 119, 128-147. ` 8 Am Jur Proof of Facts 527, Nuisances. ,'s f+::::::::4 3 26 Am Jur Proof of Facts 181, Community Noise (Noise Pollution). 43 Am Jur Proof of Facts 2d 303,Commercial Activity as Actionable Ptiv; { 5gitr: Nuisance. i ist ; tip; n 4� , �` ' Annotations- 4� � L z L 4r� 1�`t <� � y `` '3 4 Animal renderingor bone-boiling ft ,�f t, � ; plant or business as nuisance. 17 ALR t 7t'x. ,t 4 1269. . • fir} rr, ,,� �q. , ', i Stockyard as a nuisance. 18 ALR2d 1033. t , .- a`. ,a Keeping horses as nuisance. 27 ALR3d 627. ' ' r t r, �tt *,.• 4 _ Texts— ) � x cryY� II ,': Massachusetts Conveyancers' Handbook § 13:503. 1- f` t, y,�t r r?>: CASE NOTES { E f ,; X y 7,4 } This section has no application to an melting and rendering establishm, "' M #,' :.Y establishment in which the business of used in connection with dead horses ,r r r i= .' t melting and rendering of grease and tal- other large animals.Cambridge v John '' .. } ' ? low and the making of food for fowls Dow Co. (1904) 185 Mass 448, 70 ' „ ;;t ah,;( ,,., - .; from oyster and other seashells is con- 447. ' , ;i ,p 1 ,� i -, `: ducted, but was intended to apply to a +, gz Sa o t+ r w sj) h STABLES Ea }li - d L:S fy, 7 Fnx' s 's ' 'Y 155. Licenses for Stables in Cities and Certain Towns. k T yr 4 • 4 C - c s i 2 • No person shall erect, occupy or use for a stable any building ill ti't. ,.: • , ' city, or in a town having more than five thousand inhabitants, unlr ': y', ?y , `t ' such use is licensed by the board of health, and, in such case, only �� ��p ;-z the extent so licensed. The fee for such licenses shall be establish( t fi • i . . " :- in a town by town meeting action and in a city by city council actio i • r� t '�� and in a town with no town meetingbytown council action, byado. �'sa *.F , t �;:YV-4 ,..' tion of appropriate by-laws and ordinances to set such fees, but in i .,'x �, ; event shall any such fee be greater than forty dollars. This sectit k t t1 11;. shall not prevent any such occupation and use authorized by law t r x3 ,w,', May fourth, eighteen hundred and ninety-five, to the extent and I �h^s, ` �+ the person so authorized, but the board of health of such a city ;: ' r ,$� town may make such regulations or orders as, in its judgment, t1 4 'V,l' public health requires relative to drainage, ventilation, size ai L, ' � ;1 character of stalls, bedding, number of animals and storage al e i,. ",�a is'4 handling of manure in any stable in its city or town. f" n ,� 472 r., _ ` • huh" e �_y , ';4i i; a, -..�,+,.�svtGz'�k SF M.+�.R'.dXµ- a#• i �Y ,( �'+P"x.::.A"' t ��'�. �.. ;'+R`1 �'ti`i 'V'��e sv ,4 did r+t i4,1.. • �: ' v ic4 _�# ae. i4" '' ' . a J� S zti+,r 1 A rr = Mj 5 ; z 'z i . rrt�st` 'r tt S Y A _Ai t ( F.' a si'. x '"�,,,r' _t ' `1 ^C�f ' " ,�1+. „-r'M1 u,3 !‘Ti t 4r .,�¢ , t '� t "t �" , E i '' 4ir L i; o 5 ,r ,x ''< 4 o-'- a t ' SC ,s&.�g � sw ! i t a.,}.+d..v ,. -.9 ,P, ?ew, -1, , , kr' „c..,s ir<aih t Ssxt + {���� rt . r,-.: ,,-,,,,0,-.,,,,,,t,,o,,,,,, c! {! if$tt* Y,l;N1T 1 f4 p ,.„?4,„,11 ....., - ':':•:-_.".'.':-:2...',1,.-:,,:;:.4t:,4 i., ....- ,- .. : . .. .,,,,..„.... y 156 PUBLIC HEALTH C. 111 ,f 4 t . } rf -..i '' i 4xt 1iY`'0.3 tkr } E `r tory— 1 ,- rt ' r arNrg ,, 230;-1890, 395; 1891, 220, §§ 1, 3; 1895, 213, §§ 1, 2; 1896, 332; ? ter1r�4' , �� �, 1890, I , Ai s ;it A+{`' 897,300, § 3; RL 1902, 102, § 69; 1912, 486; 1981, 351, § 58. • Vtt t. k £Z Yt r r,",. Tuitorial Note— ! 'l' ,wv''':44 F 1 1" `;;'-'4r e 1981 amendment added the second sentence concerning fees for li- I } * t�,k 3 c 1„r. t �y Th ,i Y, y -4 r .'',, ikf tenses. ' 1 t.2{M�V r t ' Total Client-Service Library®References— ' �� ``�' ',c 58 Am Jur 2d, Nuisances §§ 71. s S ; F- 59 Am Jur 2d, Health §§ 25 et seq. ti„, q,-.3"-Z0-.}' ..',''''-:'-.:s' ''''' '', .f.:.'•'—',,,•''''V 'w,," `„`r{'82 Am Jur 2d, Zoning and Planning §§ 39, 44, 45, 119, 128-147. .l4 h 8 Am Jur Proof of Facts 527, Nuisances. 1'Vsk� S:,• t "' 26 Am Jur Proof of Facts 181, Community Noise (Noise Pollution). t l.'.' • , �c yf {11; 43 Am Jur Proof of Facts 2d 303,Commercial Activity as Actionable Private ' , v g�• 4 ' a i t{" y� ,Mt il',';.i.',M:'f:Nuisance. !f t 4 Z `"'}s"'J x y14., i ,«y t'; '> t','� '•.i `;; M;Annotations— : �' } #4,r $y� V .� `'a r i- t 11 tij,J c`� „ . •h,�„: Keeping horses as nuisance. 27 ALR3d 62'7. - �, 4� ,- , .., *rt ) '' <', k 4, d t f , -,�r Y ..,,T Texts— v-4r,�rx Y , W, 2 Massachusetts Conveyancers' Handbook § 13:503. r '> , , CASE NOTES ,.,, i f >n; r r. ;',,,',.'''.;;;.-I:.:;,;',"': ••r r g:The provisions of this and the follow- rinucci Bros. &Co. (1962) 344 Mass 50, + * "ra a* ,. J4, r'; :-: „ ft�- lug sections are an exercise of thepolice 181 NE2d 584. tl. " p,,� � �4 f �'� tyR �'j,x,f�,4q• ,t '',...,:M.;'''.'.;;',.!';'.::, > as. 4' r3 `' power of the commonwealth, and are If a permit to stable a horse, issued by 1_ ` r }� •�ff6, °ems . rr ?constitutional, although no provision is a local board of health under the instant t J x { 't yj ! 51 fr made for compensation and no right of section,provides that there be no storage t;i ; ,a c i i :' ' ' appeal is given. Newton v Joyce (1896) of manure within 100 feet of any property ' _t 3 �r , ' r � A',,..} t '' r 166 Mass 83,44 NE 116. line, the of an abutter for the i � `t k; remedy s r� G i f y 3r w t �a1' violation of such a provision would be a s 1�rl ; �' ? , x •k r > This and the following sections are de- request to the board of health to enforce k g; ,fir < Ii� °1� lift , signed to protect the health and comfort the proviso,and,upon their failure to do 5 x F x (�. ('{ atn 1 • n, ' z _ of the community, and should receive a so,t bring a mandamus proceeding,but �ifi.'9, ' a tl .construction which the plain meaning of unless the keeping of the horse consti- es, ��, t r t�' � the words imports.Trowbridge v Tupper t ;'� �� 3 p g PP Lutes a private nuisance, no remedy lies tit�t'g'�'^ K art„ f a, �. $ t x: (1912) 210 Mass 378,96 NE 1096. by way of a bill in equity.Flynn v Seekonk • f�), ",' 1 ,z-" ,` 5s The license provisions of a predecessor (1967) 352 Mass 71,223 NE2d 690. x4 " ' t , * -' r �t, r section, were not applicable to land held Statute eliminates threat of stable being t} s, qq„ ;�- ,b•the Commonwealth or agents of the built in largely residential area.Blakeley v ._ ; T'�F 9 r *.. i F r t" t' • ' ;� Q3'.Commonwealth, such as Metropolitan Gorin (1974) 365 Mass 590, 313 NE2d i SS , r �g*S , a `.7i Park Commissioners. Medford v Ma- 903. i I 1 ) *v F . y`4 -,t ;.}!yt xFti �? is 3• § 156. Stables in Vicinity of Churches Regulated. { t tf4;:f',. � E • i4,t: ,: No person shall in a cityoccupyor use a for a livery stable, n,w: building 4 ,. d ;, or a stable for taking or keeping horses and carriages for hire or fo • r ft v' ?" kG let, within two hundred feet of a church or meeting house erected a t Y Yi `; , �;: r k ;�r. p L A ,', and used for the public worship of God, without the written consent • l 'r $` `" 7v.,. �`'•. i,'" 4, ,n 473 3 i' 1 k t; 3 3 9 1 , 1 zi i rt i ; d ,t t • t Ns 7 k t 4 t is l$2 S-, p, 4' �4 ? pi:4;`ty' -.144N 8, ii 1 }i l t y f SZ L j a t,} 1 11 t 1 }jF a 9 { f '{' it 'L''''P 'Y .!0:fl 0.f A 4:I .,t f'�,,, K4•n.- 'u'•.;n. •w-.- R �r i7e rr+�' s`',xy",,"5 P`6 ;h;,w CS'n' >'K yd �:-�. ' , 'A ,1-;'N'',; € e :..rc .t '`@ ,; i!: z aF da t}t - Erf r,r "+•t- F5,`:tS, J`,'� 'u,w .v Y r i 4 wr, .a>+r'�,2, .,6 }-ik nt' _ e.,.;" 1{_;.:r. .,., -;�,"F? ,,.:'+.Y i ari- t's. '` '„„_.- ' i L x,:if3,`S., Ar3.j;t-4 4�'14,1 lit i*,. ..?�?4,.e aG•.f§. t ,, 4, Ot t ,r a t1:7,t{ r' qF:"v, 2 4i1 @ �, 's�•p i+T * a i t" -a H Y i`i '' 4v J .:S • i p ,:'41v � t � R } rvW .t r ;< ^ * t t � !pY Yt6- A 3 i { .u t- 4 , j y c,�N � � �;" � ,y � z ?s �.r r i Vi� , t as 4 “ � :}P (i 1€ t t! 3 > ! ' a} • //f1xi ,ifx t , E 2 Y -.4a ;;gs S , 3 h' ,`k3 p ' r I .j.y ,y• i 4: T! '. at • • • T• • f ` it. F , ''f _:f ,,.. t. - If y x' t 4• , r t x y" qi • ;,, ; f i 1 *r ,. ' ±` .t(S•• F t ', ,.,,At''''..,,,, y b S z' .i IN M)j 1 „' .At 4.{•.r 1 .J ,• •• ', .. "31+'f'Ft1 ; s i , 1F yi A S }'. �. F,�'+ Y q 1 �' Tart S'�F.3 � Y ♦ M k PS 9/'z s ._-.`,'a''S�•t� 'W`:.',^v"..st 'i�� 'Y^" - I : { .vl J 1 ,,, ' i i Y Fq's t 45. `` ,._F9,+r`',. t i 1 i A}F`r;! 5 t � i � �•zy�w rr a r . PUBLIC HEALTH J` &g t Y i4 t i ' 1• 5s i t ` S ri q `ll,.115* '' ',�'4 :_ `` 4 1 Sal 4 C _ p44'i Ct�'>i1fM'.p. f� ) � x 5 � i _ A,'� ' r it`„, Handbook § 13:503. I r ,,.,1 l tr T� �i ' 1 3 1..'1 '2 t'''d y t j Ah <;* ssachusetts Conveyancersr , kXSp • a ,i.t r •M1.131 ' f �$ { .asap 158. Licenses for Stables in Small Towns• i4 � , S .as +§ o elation of five thousand or '. k1P fy e r }''The selectmen of towns having a P p more than four horses in .1 ; . t' „ ` 1 1 ` L f y 4 `es and may • „�*less may license suitable persons to keep , t J , ,5 , ,�} ,.- , x :< ,i •1 t th �,b' . s• p ecified buildings icensesr places at pleasure.In their The fee for su h licenses shall be « " ``evoke such such fee be t '€ ,` tt. but in no event shall any i � V ti� , , :,i' said selectmen, r' 4� '' ,r }e ter t d by ' z esta not being licensed as afore- y dollars, Whoever, ' t �� r�r+i 1 4 w t greater than twenty lace for a stable for more than r` • �}4,�� s ts4r);�� ,' t `.satd, occupies or uses a building or p month E 4.4. r , a {r , roportiontrAf.:.4,A.four horses shall forfeit not more than filac eoand in 1 kepry I,,:` ', 4. a' he so occupies or uses such building or p restrain the erection, oc- jj ' At yt Kf/, .kii',t for a shorter time. The superior court may E N K» 4, ;i' `cu ancy or use of stables contrary to this section or section one It .' x #t, ,;s , t ve or one hundred and fifty-six. ,/ }�� ;` „ Nat 1 ti'r hundred and fifty-five 4 1,4 ,," ri, -`1 tl .41. ' Y 39; 1 aq {' sx? . am-e4;°Y , t i�,. t, r PS 1882, 102, § 1• .History- 88, § 32; r; •- .s° ' . , � yi.•„ f `j '• •-• 1851, 319; 1852, 129; 1853, 362- G4S 1860, 213, § 3; 1897, 2, 1 § 2; RL t i v T t 3, yfi F • 1890, 230; 1890, 395; 1891, 220> § s --g I xla ' r y• 1902, 102, §§ 71, 72; 1981, 351, § 59. 1. '' �� � �$ l��a .y ''y fit ' 11; 1111 !r'4 Y S+ i:; Editorial Note- i r Y'h' :l' {ls„ ,•a t ` , a s `�: '' The 1981 amendment added the second sentence concerning fees for li ,f� �} � i i F J r4 1 tenses. ,•..s li +�`; +;0i , f* '' y.` .: 4; y sr`r References- t ice Libra !t ;�£'x r f '{ t°s.l� i'1'`'' .•. ,k Total Client-Sere 1 ,f ,1 frif t . i i r+ Jur 2d> Nuisances §§ 71. tf 11 1 °' '3 w x ,i3' l tf , 58 Am 59 Am Jur 2d, Health §§ 25 et seq. 4�s1 ' ) " '•. ts° ty, 3i.-y". 39, 44, 45, 119, 128-147. r s ' c; rw r r '' aka r ta 82 Am Jur 2d, Zoning and Planning §§ Y4y,� `1-k ` 8 Am Jur Proof of Facts 527, Nuisances. I ,, T,, fi', " q�*tie `',4` .z F wr Community Noise (Noise Pollution)• �{ ;�W-1:4 `i: "� � ' ;j'. > 26 Am Jur Proof of Facts 181, A I1 G,r k , ?' le 7 43 Am Jur Proof of Facts 2d 303,Commercial Activity as Actionable Private 4 q 3 l.i)', t 3 �,1•,,'3. SN ::$ tip 1,1 *1.'S. 1 Nuisance. 1� V, '+` ,,k %f, r q �Y. +s�� '�'? 0 r's'. 44 W !'';,,,-, Annotations- x, ,w ,' " r , +tV. ,. �` Keeping horses as nuisance. 27 ALR3d 627. m a r } t r 13:503. i• i tle ".;i `' ", ;;;} Texts- 1 P $ d F'' >_x ri * Massachusetts Conveyancers' Handbook § ,� } A . CASE NOTES • i > SI Yt ` . r iven ef- 11 1 s f #' • �r"1,= ranted this section shouudtife the court Y r; } F Sy.. This section implies that courts may g '';. �:'q,: not restrain an erection of stables which feet, so far at least as to j y tt in refusing, before the stable is erected, ' T is in accordance with this and the preced- ��• � sections: after a license has been to investigate probabilities of injury in the s �/ 1t z ing • le. 475 d C 'fir I. -' S. s_,rat'. ; 3 k ",g ee 441,TI' "E. 1 t `t fr t ,' t u 1 .ixwt.ems^ s ,'.tY.l''+:+.tw v4.r:,t { M•b rr%rtA r.,yrw E.-..tit hi-4,1 '`4' ,� e .,. Yt:7'.'SL`4..4,4,-0•Y-k+:0,0,a:Y ' '•Fsi`;± 'S4 ,.'y xT laq' •t +' rf .�-4• f P . 4 ,x.y Y'4;�✓��F, 5 'r r ;s 7 ' r e -4+y" k D' M. SrA �f,. �Rw" 4.• 6 4 '"t{ 'l.s Ye i_`1 "t' -1! , ¢"' k'` i.,, ' :i f ' S +L sa' ,, i. ,` .x k +t�, , , , 5 of G :�I, s, , xj o r c f ,� r ,x r -0 ;rt., P iC 2 �, ° -,t'r "d9t '3'd it rs , S 4 ,: T t t 5r i F G�.1 rN ' y Y bt f'Y`, ', ,t„ `-.,, `•. A+ r t ..' '','• t., W °. :4, ,r t , i' �pS y - }. ?S 9 fi, 2.. . ir.� ,t, .. Wt •- f ,,'uy ,rt 1:,„..4 itit 6 Y� x:ct .r. L.,.�:n 4.'.AStli�u?S7 �; A;,',,t 1 f, 1 „ k r " �. i .1 I sY t e,, i 'i' it , r afi't 1--1,; t ` • l ' ! C. 111 ANNOTATED LAWS OF MASSACHUSETTS f ?#? future which in their nature are more or whether covered or not. Brookline vr rst�p less conjectural. White v Kenney (1892) Hatch (1897) 167 Mass 380,45 NE 756 1,1• 1!, rni• x ,. s� }t T� , • 1 ! 157 Mass 12,31 NE 654. Under prior law the superior court had r a ° ° k St 1890, c 395, by which the superior no jurisdiction in equity of the power yr!a�-• conferred by the Pub Sts c 102, §3g �i4 ' S o , court was given concurrent jurisdiction t 4 Uzi+ q from which this section derives, to pre•, h t i.1 with that conferred upon the supreme vent the erection, occupancy, or use of a'`°r ..• . t� z judicial court byPub Sts c 102, §39, as e r building as a stable for more than four"T : ' x( , ' F amended by St 1890,c 230,to restrain by horses. Jurisdiction has, however, sme¢"t " , `fi.�� 7 .�;1 injunction the unauthorized occupancy or been given to the superior court in suds� $ y 1 use of a stable, did not give to the supe- rior court such jurisdiction of a case Mackay (1897) 168 Mass 76,46 NE 412 ? j 4 pending there at the time it took effect, A suit in equity in the superior court 7° ,a'i ,, ,'• > but of which previously that court had no under this section must be brought by they`ti , r ''BF s �': jurisdiction.Langmaid v Reed(1893) 159 city itself and not by the members of it ' is {fi, t°t< , '' , 'f,.- s` - . Mass 409,34 NE 593. board of health. Trowbridge v Tupper_ ,� 1 t ,, �&; t 4��+� This section is aimed at the nuisance (1912) 210 Mass 378,96 NE 1096 ,�,• ,. . a14' -. which may be caused by the keeping of a Under this section a suit in equity may t$di 5 t }1. number of horses,and it can make no dif- be maintained in the superior court- � k' z . ;� • ' { �,��: ' "e,L�ii •• 1 ference whether they are kept in one where there is a reasonable certainty that ' ',r 3; a r r- t, building or in several, or are kept in the the building in question is to be occupied z.:If ,� •Si , w y ra„ ti yfF ;i ,y r, open air or in an enclosure. Brookline v and used as a stable unlawfully,although'!: •• }eY-aY ? Hatch (1897) 167 Mass 380,45 NE 756. no actual injury to the public has beep ,i ` ,w sty ,% 14p* ' �• x The word"place" in this section has a inflicted at the time the bill is filed Trow ;1 e it;, 1,f, , ? a 1, g; broad signification. It applies not only to bridge v Tupper(1912)210 Mass 378 96 t y.7, i r4t. k zr 'fit a building, but also to any enclosure, NE 1096. 1 ?;A?;, ,. v z 4 x= R}. /+; Ali." WATER SUPPLY . ,. • ' '� r• ;� qqy� § 159. Supervision of Inlard Waters. i k,An,. i4 Y!,-�cI adt'tv�t*h+ �•t.a;g+, ; t +°.�'„ + ° ?Y ,.� , ,. ,, ,t... .1 The •department of environmental protection, in this section and:, i y pit; tY � 1 sections •one hundred and sixty to one hundred and sixty-six, inclu 4,C, 't 4 rs h,, ti w' cr" i c. 5' , �_ a ;, sive, called the department, shall have the general oversight and care, 1 7'i s ,;r + �d ,� � ,„;ti• � iff ,r • of all inland waters and of all streams,ponds and underground waters z { ' : , y a' `5 ' , i used by any city, town, water supply or fire district or public insutu e yea ° 4 �: tion or by any water or ice company or any person in the common- t3, r 1,' ," s tik rx r? s, • t + 5, �y, ;, � -� ,+�};�{ �,,rr , � c;,. , ;: , t wealth as sources of ice or water supply and of all springs, streams,�`�: rf zit, 1 : ;L �' � , and watercourses tributary thereto. It shall be provided with maps ' ,r ' ,' 'r 2 q- f1 s� " ti plans and documents suitable for such purposes, and shall keep re, y , � , cords of all its transactions relative thereto. It shall give notice to them ' 4 • , , 3 attorney • general of any violation of law relative to the pollution of"` ,- 7 ;1 ts4 �" HT rA water supplies and inland waters. -1 rC 11. '3. 1886, 274, §§ 1-3; 1888, 375, §§ 1-3; 1890, 441, § 1; 1897, 510, § 1 RLr. - ., ek 184, '�hp': 1902, 75, §§ 112, 115; 1919, 350, § 96; 1951, 448, § 2; 1975, 706, § 4.; `F S r 4`9 J� �K _ yr+ rl • I- '2 + x k y',,�1 T 1990, 177, § 183. Q•`lp , ` . `� " Editorial Notef. — v `' a� 'S5h £rn :4.-, C- '� The 1951 amendmentgave the de artment control over underground• ,i sy r'• e9aw p k'• ss 3 , , , „4 rya. - waters, and otherwise broadened its powers. �fi;y,r. 5 ' _ -1: " 'ai t* . r ex i � . }S ,r_ - "yr4 iY t1.4 �sy fIt':., ' 476 eel . ei; t 1.F ` s yi t 1 �,it "'+ ryk ,r t-;.--,if,':.: -' k e rrgti vS • mSd +• 1 45 y�1. { �'a3 .• ' :',I• s;t k tY4,*•kiaE --•deb #i.y ..'4, ";'.,'s§It_i;s• + 44.4 c,r 2I .:.‘4Lhaa Mz ''- P ,ix iS a4..i t ` e.0 3 3 .it A N .5i k :.7,17,"1 Fv ,f X' -::+ .t M tom• p'' v. y'' y f\'' ' L�*'a! et.' Y!�( Y^w'a` .d c®' S'� 1, Y' it .: i -, ..� -.r1n.9�„ ._e .: ••.ie. -fir l .ram � ap. ri'�.�J§##:E. nq{. ;Yp .� ,� 14 , 2, 24 , 26, 2J - i- + h , C. 128 ANNOTATED LAWS OF MASSACHUSETTS » 1 t S x l r 'b , ` 111. Execution of marketing agreement as not requiring issuance-:4`, > # ? of marketing order; issuance of marketing order as not'e° ft = =� , requiring execution of marketing agreement. } * 112. Applicants for marketing order to deposit funds to defra ,V 4 3 expenses of order; reimbursement on pro rata basis. y ;4 . 113. Assessments not deemed to be state funds; refund of assess. ,g ., ments; biennial report. )- 114. Advisory board to assist commissioner in administration of t. . i` marketing order; membership; duties and responsibilities. n. ,,r 115. Rules and regulations; commencement of actions. ,, a_ tit , ,i t VERALEX®: Cases and annotations referred to herein can gi '' ?E t 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. r., ,Y v i DEFINITIONS e r 1. Definitions. tea-:" a 3'�z : 1 The following words as used in this chapter shall have the follow- i • ra , ing meanings unless the context otherwise requires: "Commissioner", •, j' ,S k • the commissioner of food and agriculture. "Department", the depart- ; x �.. " ment �of food and agriculture. "Director", in sections sixteen to k: thirty-one, inclusive, the director of the division of regulatory services � _ ; : in the department of food and P agriculture. "Inspector", in sections fts ' ' ' ` thirty-two to thirty-eight, inclusive, the inspector of apiaries. "Nurs- .: 1'Si , ery stock", trees, shrubs, woody plants and strawberry plants, :' whether wild or cultivated, and parts thereof for propagation. "Rid- 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- 17 ` ees", the trustees for county cooperative extension service. (1918, y 273, § 1; 1919, 34, § 1, 350, §§ 34, 35, 37; 1941, 490, §29; 1967, 28; 1972, 717, § 1; 1973, 43, § 1; 1975, 706, § 199; 1981, 351, § 263.) # '" Editorial Note— > 'iii The 1967 amendment struck at the end of the definition of "Director" "and fairs" fi 7 and added the definition of"Nursery stock," The 1972 amendment inserted the definition of"Riding school operator". V t 202 r rp. 11-1 t is 't A`,t : .. ..dr 4. 3 4 h.,+, '. , a ,,?n..y+ ,9s:' gTd': ♦. a ,.Zydz so 444et, 4-. i,Via£:;°y''IA'..-r:: . ?ti,.",d'', J1: ..,.. >`.. ._...... u r 10 t:Zv..U,. , ;k•pia 6ti,.. 3 ;i s a'' • g. • s,+.y:•--•• 4 `.4 s'' ?i ,+.s/"' --,% Cr.+,;`=r . _.} . t y. t -,. '.L s .X u ,�� : -,1" r `mot ,' •.4.�:. i X•,y°{#$+ i"-44.'-`k1,A+ ,4's><J``>•?X'4, >p<'" !P rn s ` •,k-0 � 9+q•4"tw5ir4,'I 'd'kiPF. +�1'. f` k ': ,p 44'r n .a 4• -a tfratt, igjt'1 f + x...... .:�.''t..I,ed E;I'h?=. t ibf'`z, ar ,.w _. v,..p 4..itA4„$. dFr��ikd ,i_."1 ,x ,!••,. - d d �i. ' 7 i YY '. a .�?.`. i 1''11 i iL�t 1' • R 1 �P ,r1A AGRICULTURE C. 128 !a� 4 ,x i k , i,,,,,,.„!-,,, 3 '.4-- ,'. The 1973 amendment rewrote the definition of"Trustees' Ili' ,,•}f@ 4 k ' -, -. ry r;Sty ;11 �Y...t r,14 ,#'$ KThe 1975 amendment substituted the commissioner and department of food and 1 i: }; ; 'Cl agriculture for the department of agriculture in the definitions of commissioner and '(f i a 1 a`t,f t i,department. 1 i 1 , +; tI V V The 1981 amendment in the definition of "Director", replaced "director of the i a € , , division of plant pest control" with ''director of the division of regulatory services in ' i ' 1. is the department of food and agriculture". ,l, i• , } ;tt 'Acts 1939,ch.405,§§1,2,provide as follows: '1 .a .x ' ',.;..;;-5Pt f� V`SECTION 1. The name of the division of plant pest control in the department of 1 , h , .` l •t 1. , agriculture is hereby changed to the division of plant pest control and fairs. The ,.h ''division of reclamation, soil survey and fairs in said department is hereby abolished, f ,., ° Y°"ind all the rights,powers,duties and obligations heretofore conferred or imposed upon _t,1 i'' t 1':said divisions, or either of them, shall hereafter be exercised and performed by said t zt , ;�k .division of plant pest control and fairs. The employees of said division of reclamation, i`sx, s',,,i,,,-,,1 soil survey and fairs are hereby transferred to, and, subject to pertinent provisions of Q R ? . law, shall serve in, said division of plant pest control and fairs without impairment of s their civil service status or retirement of rights, i i ' x � y{�i, x Z. •ti;;SECTION 2. When used in any statute, rule or regulation, each of the phrases tEk r ". ,4. ,;.division of reclamation, soil survey and fairs" and "division of plant pest control," or ( `4 s f ,zany words connoting the same, shall mean the division of plant pest control and fairs t ' 3 ' g ,+ , 3 ✓ In the department of agriculture unless a contrary intent clearly appears. • i°, ', ,, 3 . W, r:= Acts 1967, ch. 214, entitled "An act placing the position of director of plant pest g r r,•s,r b vM1 a 1 control under the civil service law", which was approved May 5, 1967, provides as •r :i T avr' k ," fit'. to*b follows: 1 ; - IS �' #j uz "t The position of director of plant pest control in the department of agriculture shall, { ' 'upon the effective date of this act become subject to the civil service law and rules,and , M s (-,Ak `' the tenure of office of the incumbent thereof on the date of passage of this act, if still 1 , r $. �i ' ,the incumbent of said position on said effective date, shall be unlimited, subject to said w " + ci .4 3 x' law and rules; provided, however, that he shall be subjected to a qualifying examina- ' s a ? ' �g . ,• tion for such position by the division of civil service,and,if he passes said examination, "'l, , ', Is,� shall be certified for said position and shall be deemed to be permanently appointed ' �' ° I ' 'a '--thereto without being required to serve any probationary period. , a'K¢ r�",,r -i • t`�t, t. *i Via„ 7 Total Client-Service Library®References— Y >� 6 j ` "; `� 3 Am Jur 2d, Agriculture §§1 et seq. �- '•$•H . '` ' +a,L` l A. "Agriculture" and "Farming" Defined. a `•4`w K'' i i. s "Agriculture" and "farming" shall include farming in all its fi� _ .%.? t 7 branches and the cultivation and tillage of the soil, dairying, the z r`�.. r , ;1 'gr di' , rxz ";'production, cultivation, growing and harvesting of any agricultural, ify `- g , . ..�4. floricultural or horticultural commodities, the growing and harvest- • t 5:: h z' d x;` ` ing of forest products upon forest land, the raising of livestock, the •1j '�P,�, ` • £ keeping • and raising of poultry, swine, cattle and other domesticated .z "-} ` a ' ar - animals used for food purposes, bees, fur-bearing animals, and any ' �,? a r R'= t 2 1 is_ practices, including any forestry or lumbering operations, performed• u ' • by a farmer, who is hereby defined as one engaged in agriculture or 14 `a•4 #:-,',, farmingas herein defined, or on a farm as an incident to or in f t ., ;; :. �s - � a 1. .. conjunction with such farming operations, including preparations for c3.2t Y -k market, delivery to storage or to market or to carriers for transpor i� ,,, . +; fi r, 1< "r r r ,,j 203 r Pe '. n r j.` 4 J 1 - *k ,..,-,f ". �. 1 Yc ir31 { i� y 1 i y¢t•re as d" n yxl a ry Nw rl E } t i �UU iy 43'' f 1�} v v, f^(i s •;s n' tiµ N'k d h4 �3-t - • �+ v n i e ." },,tvit+A43,. . i' is '>; i. �; • 1: RtTraC "`'- „ S i°`' t : .t. •, u • • ' �A i,;! 4, i yi �fi x - , �"'y.,,4 r ,•;J . :&; . , '• r .."'i4. * % 5l " x., et4iu. rr +, S' µ,t� ` ; . 1 n L ,,,,.,:i....,:,,., .,'i. y 2 a s-, " f :�dew ,-' i i t 9x'Ns e a � � ft1'k't` .J , t a r tt `dy.{ a th $ 7, a4 '....,'14. �w „,� , 'r c +6frfrY ""tii V,-;, I- » xF,yY1'$'.1q;, � at.? t' ',,''' -f,• d ' PY My - F , $.,,4, '' .w ^, ai.l A,:€., .. ... ',4.It, .ar'alate,z..s ;+ L s,4„:,T1t9.a "?, Y .- C. 128 ANNOTATED LAWS OF MASSACHUSETTS ,.ty, § lA tation to market. (1952, 386; 1960, 181; 1987, 253, approved July 14, s 1987, effective 90 days thereafter.) Editorial Note— :r The 1960 amendment, following "livestock", inserted ", the keeping and raising of t g' a poultry, swine, cattle and other domesticated animals used for food purposes," follow- } r, ing "fur-bearing animals" deleted or poultry", and changed "preparation" to fJ "preparations • 4e 1 The 1987 amendment, following "commodities", inserted ", the growing and _ r harvesting of forest products upon forest land". CASE NOTES ,`' 4-il i "Agriculture" includes operation of v Curvin (1986) 22 Mass App 401, 494 f¢; ' ' ` piggery. Buildingp p . E P gg y Inspector of Mansfield NE2d 42. 5'.•. , . DEPARTMENT AND COMMISSIONER is ,' c § 2. Certain Powers and Duties Defined. fl 1. The department through its proper divisions shall have power to— ¢� (a) Execute and carry into effect the laws relative to dairy prod- ' ucts, animal breeding, apple grading, plant pest control except the , ? I gypsy and brown tail moths and the tent caterpillars, apiary inspec- ' - , tion, and the production, storage, marketing and distribution of i °u Y ! agricultural products. �. -`4F (b) Aid in the promotion and development of the agricultural ar resources of the commonwealth and the improvement of conditions of i rural life, the settlement of farms and the distribution of the supply t r of farm labor. 0.`r ' I (c) Establish a foreign trade section in the division of agricultural fdevelopment and investigate the cost of production and marketing in a -, all phases, and the sources of supply, of agricultural, aquacultural, i 1 floricultural or horticultural commodities, transportation, storage, . ' marketing and distribution of said products sold, offered for sale, stored or held within the commonwealth. ,tz•: (d) Collect and disseminate data and statistics as to the food, ' 4 ' ,4 flowers and other horticultural products produced, marketed, stored 41, or held within the commonwealth, with the quantities available from Kph time to time and the location thereof. l , (e) Investigate and aid improved methods of co-operative produc- ;; tion, marketing and distribution of agricultural products within the commonwealth. 1- ,- d- -,1 . 204 4 ri f i t :II ' .. . + al . ..�. s" � 'A € 'y " ; c , LrA,''r ''' i ., Y ,,,,.'i i . 'wadi C*!;•'af! I' . me # '4 : tx` ,, r 3 " et ,-4k%It cam2 1f,.. .t1 .t , :; ; , 4 , r . rt a= f : y,•s T Y - '..4 ,+,9 q c ,y r 1 .5: t' x ..,s k S „f t a i x'4'`{i$ x e '�.i,y.:af,y r ,'.4+"'.m t i:..; k',"�F-a fE� Y .'e " "s' 7. £rn` #--,a"1? .ky ,4T � �,+ * _�x �, ' :; zt` �,ii ,"'=J-v'�-'': t {f i i .,.,,ittl AunM+a N: .4,*A'f�bl4",,,,L 3 ;¢ ,.9=,�r, ,jii ,�d,,.•:�. .h'"+� i- � . �rt+CA.,aa 4JT1 ys v � ' AGRICULTURE C• 128 . { P c' r ` M. , § i S t 4 i 1' )' ,, ." ;.. prizes for and conduct exhibits of flowers, fruit, vegeta ,t F ,' ' * (f) Offer d� < bles, grasses, grains or other farm crops, dairy products, honey, 11 -,� 3 s * '' `' horses, breeding ponies, cattle, sheep, swine, poultry, poultry prod- w£ h fi. �. ucts, rabbits, hares, dairy goats, farm operations, and canned and 'I > .' a r , fy iA•rM e+ 1;. ;k ' c dried fruits and vegetables and offer prizes for, and in aid of, the 1 j4. elimination and suppression of insect pests. The department may also f b c t�Ya , '.3. offer prizes for, and in aid of, such agriculturally related youth R„ l� .; ,,t, programs as the commissioner may deem approved. To properlyIC"7,F { 4� 1:3' T ' display exhibits authorized in this paragraph, the department may 1 :', :,-,1'y' Yh _. expend such sums as may be appropriated therefor for the painting, tY' renovation, remodeling and maintenance of the state agricultural and i''a'"!,•1,';wr 4 ='h= h, industrial building in the town of west Springfield and in the city of ; 1 , }?r 'j Yt tf • ! +dY a rye Brockton. r (g) To promote, develop and encourage through the Massachusettsa # ,?.. Thoroughbred Breeding Program, breeding of thoroughbred horses t ` { f ,! ,.- £- in the commonwealth,by offering: a cash prize to the breeder of a � { 'K E,. ,,fu { Massachusetts bred thoroughbred horse, equal to twenty five per cent ' = ,a c ?� jd j:.. � of the purse monies won by said thoroughbred horse in any pari- ' Si iyl - tom " r `{ mutuel running horse race if said horse finishes first, second or third; J t .- a cash prize of fifteen per cent of the purse won by said horse to the ,\ ��x,ti��� , ,i��: 4 owner of the stallion, at the time of service to the dam of such purse 15 'L winner, provided, however, that (i) the stallion stood the breeding :` i ,,t, .4, ,;itiii`i4Zz= season of February through June in the commonwealth, (ii) the horse .l:" , f , T , ,, nr i� `' '(r '` finishes first, second or third, and (iii) said stallion is registered with i <� ti ^� ",{; the department of food and agriculture, a cash prize equal to twenty '',„:":...'''''',.i;,.'':-s ; rk.,1 r4} r, ;�,r Y } ;: per cent of the purse monies won by said thoroughbred horse in any = 6 3'it. ; e2tSi. add ��: unrestricted pari-mutuel running horse race to the owner of a �} ��,� � ��` 4 " ._= Massachusetts bred horse if said horse finishes first, second or third. �x 4' w + 4 ' The department is further authorized to pay cash purses for stakes � ��,�,A��� ,` ��7 fi , r races to be limited to Massachusetts bred thoroughbred race horses i- r �/ J from the Massachusetts thoroughbred breeding program at licensed �. f t" � " •, , pari-mutuel race meetings authorized by the state racing commission. _ 1 y� Such races may be betting or non betting races and mayor maynot �t it ' o-w g = •r.AK}Y f k? _� ^��3; . be scheduled races by the licensee conducting the racing meeting. 1���"'� x , 3,�41t, Purse monies paid by the department under this section may be in IC +'•Ii A P �a 4 f` t. 5 ;4. such amounts as the department shall determine and may be the sole g l'• ..r,*2 tl r,Y�4` cash purse for such races or may be supplemental to the cash purses r , ,ti • ^ ,, k established by the licensee, provided, however, that no person, part 4# nership, corporation or group of persons may receive more than five 1 j s :iv, � s :" x ��ti,. thousand dollars as a cash prize breeder's award from the department ; '' , n4. .."� of food and agriculture for an individual horse race within the s ? 4 ,-, xi s' ti _,1.: commonwealth. For the purposes of this section a horse race shall ` � Stu}fir q ,-,'� - f2f1�ti �~ "ii,,, `': mean a thoroughbred race of any kind held within the common- fT }, `F ' ;•Np wealth. �ls-a.'" s K ' •'' 1 R4 ' 205 ,,t. a . ' [x 4a ' '� s ;z A Et t f, ; 7•.,� sX `{ of ,. ',i5 r ,% 1' t t ,..i- d xp,: ,r�7E, } � f 1 •.., ' #s,�r y. �'` }trk, 0 '3l4. ''^'Lttr;;;,'" ,f N t�!4- 17= ',; « ,js,'b , ;ry.L •iv t{ s' "\* ,-;% n X... 1 .a' Affi G 1L"14*%, S ''-.#. 'Y-,.4 ei9kL •A^°,ril:.4�1! 4',4 l 1,." a_ca �� ,., ;'fir. ,„ ,4?C7 yT • , t r-. ri r, ''K3` ?}>➢ „s y- 6 ti a t dF 'Z , « ti' t! T J"' 3+ V '"� q# Pr F`4'17, is > f:�"1;141 1 'i M # t'"t* ' ''''''kl1 ;'' vtT �' p�" ra Pa 7 k 9 aw t+ nt, ,, y a � ia� n � �Y 1m�q{ �F 3,,tfs �p a , ssY ' ' r ., F - ,tK " `• tiiE i d„ 'i< tills 1! ,-'1";,p 0;2:t" ' , b r ::y iRr. , 7 1,,,,'� as t'rL 1 . " ... w t t r ;; [ C. 128 ANNOTATED LAWS OF MASSACHUSETTS 2 ': No person shall be eligible for the prizes provided herein unless the•Lea r is ;" following standards are met: y; s t.w. (1) The foal of a thoroughbred mare that drops said foal in the ' t commonwealth, and is bred back to a Massachusetts registered s„ ,4 t.€ • stallion shall be Massachusetts bred; or rg04Fr 4,., 1 (2) The foal of a thoroughbred mare who resides in the common ` ;j. wealth from the fifteenth day of October of the year prior to foaling, '' r` ' t and continues such residence until foaling and foals in the common 1 3 ` wealth shall be Massachusetts bred. }' (,. (3) In either the case of subparagraph (1) or (2), each thorough : t bred foal dropped in the commonwealth shall be registered with the ;;;• is J Jockey Club, the department of food and agriculture, and the Massa ? ; chusetts Thoroughbred Breeders Association. ,� `• , t, ; ; (4) Prior to the first day of September of each year, each person , 4 • • standing a thoroughbred stallion in the commonwealth at either „ l x private or public service shall file with the department of food and P.' agriculture: (a) a list of all thoroughbred mares bred to such stallion x‘ in that year; and (b) a verified statement representing that said `r,'i" stallion stood the entire breedingseason in the commonwealth. .+� ,_ � 4 4 The department is further authorized to expend up to eight per t cent of the amount appropriated each fiscal year to said program for .' '< ` ' advertising, marketing and promotion of thoroughbred breeding in " ' • t,,, Massachusetts. �; x� (h) Allot to fairs monies for the purchase, rental or installation of h Ft a' , facilities to further aid in the display of exhibits and the health and '< comfort of thegeneral.public; provided, however monies shall not be �z. P . , g�, f, expended on any portion of the fair used for horse or dog racing. � ' i. ` 1 It may also publish annually a leaflet relative to trees and birds, 74. • 1 �4 which shall be approved by the commissioner of education, and may ; ' `1 Y distribute the same to the superintendents and teachers of rural and suburban public schools prior to Arbor and Bird Day. s (i) To promote, develop and encourage through the Massachusetts a ,„.:-� greyhound breeding program, breeding of racing greyhounds in the 1, commonwealth by offering: a cash prize to the breeder of a Massa- 1". ,- , t chusetts bred greyhound, equal to not more than twenty-five per cent of the purse monies won by said an in pari-mutuel greyhound Y greyhound race if said greyhound finishes first, second or third; a ''r.,i cash prize of not more than fifteen per cent of the purse won by said k, is greyhound to the owner of the stud; provided, however, that (i) the Fe • t stud stood in the commonwealth at the time of service to the bitch l and the owner of the stud was a Massachusetts resident, (ii) the a greyhound finishes first, second or third and (iii) the stud is registered 5 f 206 ( A ii t. , .ws•a•°v , t .a r m� a�z `x�"++��� t ""` ,'�" ' � �° 'IX t '�� 1yK' u • E a�cw .' �, X �iA • S � x.';oz-fa4 vK a,i, i1 , ..i'Fri1"-F n _ 4 • 1 •'2,,Li' . , s ',�. pr x f'`2' ,w :.k� ..s`�.,,Fkv 17L. "; Sn �'j: .j,, .r r = ibr,`, „,;, „. a ." t{t, , '1` ;:,5,r+ 'z 4�t,4°".�; f2A ^a �""�' .-� h +fix ,4,"'''..”'" � . - .- +rc t j wr+ s v r...' , � ,,, „fi F+ y �' Y '.): ir. ) * x d1 #. 'Z F •' {{ +n > H.'•4c t7 t fix,. J 4 T i� ( }j Y r 7 5 t d'C : ) ; ! t ' .. • ....I^n t . 4lXc"°S.'' e ' r taeJa y��!�� ��3 y A },,.. ..u4,r�.r`:M1luf.:Yi.!•�h�"+M.S<.t•'Yvf.' x�Y` :•.wY�Ra L't� , t }lesGe .. L. I1 0.1) " :ri a{r', z, I i G f r , r: k, a ti • �F. 2 AGRICULTURE C. 128 ',ts,1 , , ,' ;�,t with the department as a stud standing in Massachusetts at the time N ! °` ;of mating; and a cash prize equal to not more than five per cent of • 1 j 'the purse monies won by said greyhound in any unrestricted part y , _a s�'`ff mutuel greyhound race to the owner of a Massachusetts bred grey- i , ;� - ri hound if said greyhound finishes first, second or third. j a , -• ;- The department is further authorized to pay cash purses for stakes n i 4t lea r ; races to be limited to Massachusetts bred greyhounds from the ' l t 'Massachusetts greyhound breeding program at licensed pari-mutuel 1 ,i,. P,� y j race meetings author• ized by the state racing commission. Such races t, t Eb-sfi), . i r a" +� I,'ra •1 ,; may: be betting or nonbetting races and may or may not be races ` t x �� �! R�• scheduled by the licensee conducting the racing meeting. Purse g iyfw4_monies and prize monies paid by the department under this section l i. r r y may be in such amounts as the department shall determine and may 4 f~; ' R't At- ,E., .i.be the sole cash purse for such races or may be in supplement to the +l ,,fps , #7,. °�''x' cash purses established by the licensee. ee p f t1Pi.. i A n. � Y} r 1 f i No person shall be eligible for the prizes provided herein unless all of the following standards are met: �. a#y }, x�: k :1 ' sY ti { ; '�'' d fit. (1) the stud is standing in Massachusetts at the time of mating and �, 1 � , 1 , E_is owned or leased by a Massachusetts resident; and ir r# yy K N.Y.r 1 l"! Sir (2) the greyhound is whelped in Massachusetts from a bitch owned , {, by a Massachusetts resident; and arb N s : „,;ss (3) the greyhound is physically present within Massachusetts for ; ,�, t ' �fr=` the first six months of the first year following the date such grey- Get, #, ��A • hound was whelped; and ^g Ty jtw!#yam i •i, # y-y, (4) the greyhound is certified as a Massachusetts bred greyhound j, t% 3 '' �, �s r ‘,,,, ,� . by the department. �� t � � z The department shall, with the approval of the state racing m } commission, and after public hearing, adopt rules and regulations for .'� k '` . tt , E• the expenditure of sums appropriated to carry out the provisions ofr : '* ,• this paragraph and for the registration of Massachusetts bred grey- -2: 1 ; h - r hounds. Said rules and regulations shall contain provisions for the ,,� ` � �� �;> eligibility of greyhounds for participation in such program where ¢ G`'R;, such greyhounds were whelped in Massachusetts prior to November ` ikt4-w a first nineteen hundred and eighty-six, which greyhounds may be tx , , ` r�= �, deemed to be Massachusetts bred for purposes of this paragraph. r 40 , rn '\), ` .r 14— <_ 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 { +; �$ S 4 they had been adopted by the commission. f ' h�t ` _ ' r l'Aiiii.,',4; "' a'tiists The department shall establish rules and regulations to provide for the expenditure of monies in compliance with the provisions of ! fir- 4'• paragraphs (b), (f), (g), and (i). Before establishing such rules, the �.. •4 it t ? ; h.Y commissioner, after reasonable notice setting forth the date, place e g , i= ra i f tf,r1r f r �� f kl 207 a iig qqyy #p%pTft ' 'r41�a av x1^ ' �l�i C r5'ry ,} .r ll ,1. ,�4*Idt'' �'''r'54(Fll. fix Y� R `tifr�, ,t 'x�w� � ,7,,,r,`.., t{ a� d t n tk Lei ei+-.( v .r' K x �z f i t I ,' :>5S P 4 $ r r , s . 'c'i rr q Y 4 ,S l°d 1 p , 1 a2 it. 4 `.�, T R. 'x4 4 y.. aa,,, 2 r,et k` :.•• , i - - {s+'{I f tx rs , '' ✓it bL{*Y' y!fr;., t -,',,nib i4 e ''* a{y 4", t. ht ft E' u �r4xY�C''1 � rF1`tx`YA�''�,)'yrlte.' • ,4 a - 4:, Y,,.. z- ,, ,,,• .,y, t(As , < . ${'4. r. ..'r„ ^ v_.`•d� ...r _ -,. i^kf'' :`r4i.,...4`1 1c'. ,te'v+4 ;4;, 41__. 41• h .;,L:d't` k — 1 .P`. • s, .v.4, • ,c, •X r i. � v :•'. r �' ,?' ' ,1 ` h ��• ; !� '.ja rAi 'x 'V :,/t } 1,."P'Cvi �4i '�^t f tl AY 'S '3 h ' : �! r��f�r w' i kr; _- M = , r c t'c '"-pax- 'a�*- " ' fix' ttk�:y . ,','' ,h.k illitiait : r�: :<7':w . :,.; *, tcf Y: s�. 1 t C. 128 (f. '°'! i ANNOTATED LAWS OF MASSACHUSETTS § 2 t„it" x, ; , and purpose, shall hold a public hearing relative to such rules. (1852, 143:- 5 142, § 3; GS 16, § 5; PS 20, §6; 1891, 412, § 11, RL 89, §§6, 11, -. it ,4 1909, 428; 1910, 427; 1912, 411; 1913, 319, 590; 1914, 267, 298; 1917, 3. iu 74, §2; 85; 1918, 241; 1919, 350, §§ 34, 38; 1921, 206; 1933, 291, § 1, 1937, 415, § 1; 1938, 230; 1941, 490, § 30; 1941, 598, § 3. 1956 694; , , , '. ' 1k 1 1957, 428; 1962, 558; 1965, 619; 1968, 628, § 1; 1969, 807, § 2, 1971, its¢,• 650; 1971, 987, §2; 1973, 846; 1973, 1066; 1981, 351, §§ 264, 265, �r . 1981, 558, §§6, 7; 1985, 580, §§ 7, 8; 1986, 277, § 2, approved July F 16, 1986, effective 90 days thereafter; 1986, 557, § 119, approved, } �' with emergency preamble, December 8, 1986.) dL 1: f. i i Editorial Note-- TT The 1956 amendment in paragraph(f), added one new sentence at the end. rs:: � g € The 1957 amendment in paragraph (d), made it applicable to flowers and other a horticultural products. The 1962 amendment in paragraph(f), added breeding ponies to the prize exhibits. r.". A' �,' The 1965 amendment added a new paragraph at the end of the section to authorize ;, j the establishment of rules for the expenditure of certain funds. •14%:• ,''' `' ::%: f � € The 1968 amendment added to paragraph (f) a new sentence referring to the offering of prizes for,and in aid of,agriculturally related youth programs. . ' i The 1969 amendment added paragraph(g). ` z; j The first 1971 amendment rewrote paragraph (c) to include provision for the , 1 ",, i establishment of a foreign trade section in the division of markets. ,'" ,r �F- rr The second 1971 amendment added paragraph (h) relative to an allotment to fairs which do not conduct horse or dog racing meetings. -'• s s i ` The first 1973 amendment rewrote the first sentence of paragraph (g) to make it D ' i apply specifically to pari-mutuel thoroughbred horse races and to change the owner's 1 s ? } prize amount from 5 percent of the prize awarded the horse to 25 percent of the I breeder's prize. The second 1973 amendment rewrote paragraph (h) to change a prohibition i r against allotting money to fairs which conduct horse or dog racing meetings, to the - ' t =- prohibition against fairs to which money has been allotted spending any portion of the t allotment on such a meeting. # The first 1981 amendment, by §264 of the subject Act, revised paragraph (c) so that a foreign trade section would be established in the division of "agricultural i, , } '' E development" instead of the division of "markets", and expanded the mandate of such i.- 445 ;.- a foreign trade section to include "aquacultural, floricultural and horticultural co - ' y 3 modities"in addition to agricultural commodities, and,by §265 of said Act,i corn- ' n the first sentence of the last paragraph, deleted "of paragraphs (b) and (f)", after "sums may i. 1 e' appropriated to carry out the provisions". 1 `tt The second 1981 amendment rewrote paragraph by rovidin additional r, guidelines for the promotion of the breeding of thoroughbred horses through the ` T i, Massachusetts Thoroughbred Breeding Program,and said amendment also purports to ` s ! amend the last sentence of the section; however, in the opinion of the editor, said amendment actually rewrote the first sentence of the last paragraph. `'. The 1985 amendment, in part (iii) of the first paragraph of subsection (g), after "prize equal to", replaced "five" with "twenty", and added the second paragraph of s 3 subsection(g). . y The first 1986 amendment added paragraph(i), encompassing four paragraphs. The second 1986 amendment rewrote this section adding to the last paragraph a e' :Y 208 '1 a 1 ' r .`; ^.n,5 S x.:r,,., y ^'4 rt j,., ,,,,,r""`a9'€,"y,F', s,. C'.��"'. $r " ,,,t.- -,`. 1,4 x `,. n-'6t,t'.'N a ,, 'CT+ ,i s,Sf.,.4. . ..,! ^°i.r.r✓ a ,i F .y k $•.;ss ,.r.4 l ss�iVMr it Fr y '.i 4ii k ..'14, >w¢. Ea *. ` 'L'. • .a. -• - ta • C A ,,- i t y, ,,µ"' Z A 4 xK r' d as '4+ t. • s_" ti ,„aJ 1}3 ' - ( s` nzr'c.i a'am t y*Ffi , '�*t i� i�,,• f M,;4�,i . t ��1•Vr7v � 15 ' " •1 pt 3 „Y r ^-547loy t01 •. 4. , ,! } , L x . � A1 a r 1 5.t d z'�... r,:,:,' ..'.K..utt.a;,,'� x °' i�`�t, '."a, ,2 .• ',0" ;? r Jys. i {rh ii 4 : j _-' t;r�p,,� ii trtKt t rJ, • },, '*apt, Y� �} �J! ; b 4 � �tie C. 128 l� s ,� �h'� `,i 1 AGRICULTURE r a z 3 g r10r t07 sa,JS requirement that the commissioner give notice and hold public heaein s p -lot i. "I'ti'' 6sY , t�1"�-establishing any rules or regulations for the expenditure of monies in compliance with , also made certain corrective changes. >k F , a1 a 'the section,and ''' t � � ?$ Cross References— w l`� t}` As to organization of the department,see ALM GL c 20 and the notes thereto: 4 $q' ''` � y�. i ea• • Code of Massachusetts Regulations— ° u 6 f "+- agriculture fairs,330 CMR 7.01 et seq. iu Food and "` t' ^ '. . } t !' a"�,;.- Prevention, suppression and extirpation of equine infectious anemia in horses, 330 1 �r��}�,c `{.� x :• CMR 16.03. 1 , , `„" �t� 4 rF:i rr i.' Massachusetts greyhound breeding program,330 CMR 24.00 et seq. ,,s s " i n3-":• Annotations— g g ublicl ij c*.4rt: judicial review of administrative rulin affectin conduct or outcome of p Y l�R ' of" %,''''74 regulated horse,dog,or motor vehicle race.36 ALR4th 1169.4ii t fr ; y< -, t ' i 'i °yi its t `r wx• _ CASE NOTES t 9 K • Expense may not be incurred by send- moth in Europe.2 Op AG 118. a , ▪" purposeFoal dropped in Massachusetts but not t � t ,{ nz,� „iA ing agent to another State for of investigating question of existence of conceived herein is eligible for prize Plf ; h• a s moth in that state. 1 Op AG 382. _, , r c,• ' n* �� g,y p yawarded by Department of Agriculture r,e t� t a , a , .x • ;' Expense may not be incurred by send- to person owning horse at time it quali- t. '*r f , fies for such prize:1970-1971 Op AG 6. . a .- �}N 3 , x r;+ ya p .e ing agent to Europe for purpose of roves- �I }fz.' �' �i 3 " • _ tigating question of existence of gypsy K, ' + r r, i 0 ,4 ,..,.i• L 1 f Y F t £4; v p.a s✓ f i i to .. ..a t ea.„" fi u ��c• ti;141p , § 2A. Horse Riding Instructors to Be Licensed; Fees, etc. Y &ill JF •s • tt No person shall hold himself out to be a horse riding instructor for 55 ;: the commissioner. � • ;.: purpose by t h x i hire without being licensed for such be filed with the �C` i,as i{,�� �, , Application for a license under this section may t ;t*, commissioner and shall contain such information a ree shall p stration feebof • ,�Nl , ;. ,E 4� 5> _. i u W`,-:`_ Every such application shall be accompanied by g lication is t, °`� F ,,`r �'" • ten dollars, which shall in no event be refunded. If an app : "f k,.a " *�,c' ., licant u on the payment of an ,'. i t F•es: ',� €r..t-�4? 'ef approved by the commissioner, the app p ��k= �r t $ 1 ' ¢ ;' additional fee of fifteen dollars shall be granted a license, which shallx 3. y. �?' psi E✓ 1 � ; expire on March thirty-first following the date of issue, unless sooners. fifteen r s s revoked. The annual fee for renewal thereafter shall be • t dollars. p L, AL • .u. ��� p�u�1d , r' t s,t 7 _ 4f 7 x,I" lI 'w as ' w ,. Every person licensed as aforesaid shall endorse his usual siguart ose l� t, provided for such p p t it i f `, j41• on the margin of the license in the space p � r ia� rS r;yY A • immediately upon the receipt of said of losse,mutl t onh or destrulction be valid until so endorsed. In case �P�, ,, proper x „ ra i 0 , 4 _ of a license, the commissioner shall issue a duplicate upon p P4 proof thereof and payment of a fee of two dollars. ly i 4Y „� a s f r s r r ak: g overnin the Ziy kilt, , , • ,• , The commissioner shall make rules and re ulations g g , ,r sb, issuance and revocation of said license, and shall establish the mini- �y { $ d tt,' 209 ' da �t, ) -x ,a ' a ,k' s ft r Ark‘-',. i I z r �"Ji 1 t • { $ Tk csi + i a,} V; j z +,,s 4 Ulf i T ti: i$, 'Ft •'f'� - x- /fir • iYr-v , i., .4„,...;,„, ,-,i,,-,/,...,7.4-,,,,--,--•":-.,. . .ercn. '. NI-, i''';,,ali'l'^'"'''''k ...„,.., IP' --, --,--4,- -AP,,,--,,.;' . - . . , . r u�k , s s 7 Fr` Yt t6, f• 1t�' S2'1iC�'7 s f' ;�, f rI• 4r 0@ tic ;h { tS / M J. 3 x tt��fmi: ',33 - y "'y . .•.s n 1st, roves J i fy d.4. . �„t.,tit 4 l k i' �4ikt f'if r af.�t'' i 45 i T j J • `tl rg". �r :k', i•. i .i.•7 t f s a'_ t af a ��` ,gyp '' -, xqt'„} el,, ,l1?4 W w,..�'i yf4.L'A.4.', ` ''.''*sb Ct _5 a x S ,,'+Ln ii _\ r ,►$i * �n \i4 "v x4 tl,.' a rti �i` s , •i ra rt , A ,!:-` ,'t ? s1 .-4"--r' '- y r 1 a i 4. a 't i t `4"4.44 �J'i''a ; .41R a '� ',K. T "'; 4,, Jam` .'-, ' .:. ; `, f� ,� 4 ��a. ,t ' ^.,i474 ,i. 'e , ` y t A 4'.+ 't v w ''4�.t e`;42 i', tia',sM„•>�+'I. i' 01 i} C. 128 ANNOTATED LAWS OF MASSACHUSETTS § 2A �-'17' rF yy mum qualifications for the issuance thereof. If the qualifications of an applicant meet or exceed the minimum qualifications established by , ,,,,,A, the commissioner he shall be issued such license. (1972, 527,) r 11 Cross References— - z• As to licensing of pet shops,see ALM GL c 129§39A. zt is a ' Code of Massachusetts Regulations— s,. x. �: ,'s �I 'x � Horse riding instructors,330 CMR 16.01. ,4 s1 y}, '< 1. , t § 2$. Operation of Riding Schools and of Certain Stables ,1��4�, I:, Licensed and Regulated. ' fii,!;:',-“, t ; Every person engaged in the business of operating a riding school tr`• h' ,�, ¢ or a stable where horses are kept for hire, shall obtain a license r f4 therefor from the commissioner, the fee for which shall be fifty K ,,,,11,, -, .. - :',-'` : ' '...'i r 1 .+ dollars, and such license shall expire on March thirty first following ;;, fi the date of issuance, unless sooner revoked, The commissioner, I.r,� ,,.„_;..4;,,, '`1 subject to the approval of the governor may make rules and regula i 1� tions governing the issuance and revocation of such licenses and the i ' ` '4` conducting of the businesses so licensed and relative to the mainte w ` `, ; }' nance of the premises, buildings and Conveyances, the health of the i 1 iI horses or other equine animals, and the method and time of inspec tion and checking of said animals. Whoever violates any provision of `'�d�^��. ' ri," .� i' this section or of any rule or regulation made thereunder shall be ;:liiiiii.)...,:•h1',- \t t s tt punished fora first offence by afine of not morethanonehundred > �d 1 dollars and for any subsequent offence by a fine of not more than five . , i y i hundred dollars, or by imprisonment for not more than two and one • 1 � �` t 44.3 ` i•l half years, or both. (1972, 717, §2; 1973, 43, §2.) x ''.-4.: a L 4, }' Editorial Note— ` f*'. • P' is The 1973 amendment changed references to the director to references to the =`rE. 4.V. ' g},'% i' , commissioner. ' ;• X,'t +', Code of Massachusetts Regulations— �; . z'` ' Horseriding school operators,330 CMR 16.02, ,., F � ..LLd}, . l - ,f' x` f' \ ., § 2C. Agricultural Fairs; Administration of Drugs to Animals : l II wfir, y �{: Participating in Contests. {.` x �;; No person shall administer or cause to be administered any drug, '>,y_ � , r internally or externally by injection, drench or otherwise, to any t - �� 1 ' rf �; ,. {i animal for the purpose of retarding, stimulating or in any other r • f. 1_ x manner affecting the performance of such animal in or in connection \ 1r of ,' = t,t-.L with a contest conducted under the provisions of paragraph (f) 4 i 1 section two. Y 4 g K.t. I 210 J 'l � � i� : I F_... .. ._.. t ._ . t1 a3a i• „ �ti,, > \t} ro ,.f t�4 i aa..• t r7 ,n ,,,� ; 3' "'?1"'ce . .. �Y ..5n ., .. i.f._ . ._ a ..\...✓Rf z.Y _ _ .li.'"•Lh'!d.{`. " .'Y . _"» . 1., " � ... .. i-..-. �.w w�..�_ aw +a ,, ra n , ,£ ; ;u . ?1,;. ' !4,' �,llV,7akr, '• ,t+. ` ,9�..r "°b,' icX!y:',;:c ry'zF. "4,,, +4q 7 ,r.. �4 '. • T'xxt" �• ,vS k fyt 3.56 'k "i:h Nd3 ; � t , c ai f i 1. i 7 j f�r �{. n y_ t ,it„ ,a 1 ,', p F t -;m ! ��'E {' i u4 ..,,IU, t,;,,,,,i'iMg 'r- :*.ems'�.g L Y C. 128 ANNOTATED LAWS OF MASSACHUSETTS §, 1 ;,' TITLE XIX AGRICULTURE AND CONSERVATION a , CHAPTER 128 fiat 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 t and Their Personnel; Posting of Warning Notice. , µ 38B. Massachusetts State Exposition Building Maintenance Fund. ' 31 1 DEFINITIONS ' ' § Definitions. F • `, ,, Research References- 6 Mass Jur,Property§2:7. ,; ,.4... § 1A. Farming and Agriculture Defined. 4 ;' ; "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 n a ed 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, '^'-- § 142,approved June 21, 1995,effective July 1, 1995. .v Editorial Note- 11''' The 1989 amendment, in the first sentence, following "livestock", inserted "including 4 horses". 44 For later statutes and case citations,see Quarterly Update Pamphlets. : ,` #x'".:e�"Z 'r Y,,^t•:F 7k' ,'1:0�F. 'tf y ,„. , a."� ,t.r,; yF -;*i q1 sue+,0•,..k45 •w1�a .rv. :�` _,r'".' .. i ,.s+'F!",$ `;x}`` s. S%d .�Lt�..��Ac s'ti+.s t�j �, n 3 , r E • 4 n :• ' n1 4 3, S 'i1 9 i} � v dz kP,l1 nYY:.�t s-h ;4 t a� ,� :� w�*�'' 6� ��' ! 1 r'} r + � { r �3,;� 0 �} '�', Y ' ��' _ 4r » � ia '+ y ,9 r ° 1 . ! s c '4 ti r? ' t„r '.N a4:£:f'.'M+1,yb h$+e "iti f!�.�`4;.e, 3 4 t,t-ii.H#: �t7'N. •` : €,,4 r� 'i' Mt N.tf�:.as' ,k.�i1'G14, �f - F t:L ,2 SUPPLEMENT TO CHAPTERS 124-129A C. 128 ' f The 1995 amendment rewrote this section,adding harvesting of aquacultural commodities * q,•dthe keeping of horses as a commercial enterprise. =! AY l'7". r.1 Research References— 1 t `'j4 ,Mass Jur, Property$ 19.27. ,1 y 22,Massachusetts Jurisprudence, Environmental Law$ 11:75. �* :4 CASE NOTES 1 r *. ' Iandowner's proposed use of 5-acre por- or horticultural use of land and therefore was 1 non of 39-acre parcel to excavate and re- subject to zoning by-law prohibiting com- .4'14 t I t, k tt fi,'''' move 300,000 to 400,000 cubic yards of mercial earth removal.Henry v Board of Ap- n x �'j ,, r gravel so as to allow for access to"Christmas peals (1994) 418 Mass 841,641 NE2d 1334. {tree farm"was not incidental to agricultural -.40 L. �y DEPARTMENT AND COMMISSIONER '° A t t y�,�,r 3 ! . 4 w d}, x i.As a §• 2. Certain Powers and Duties Defined. •� , 7 y�'s r V. Vd; The department through its proper divisions shall have power to— {�y Y`, ;t w ' i [No change through Subsection (f).] 1;4,C7r , ,` " 0 "#` `yt'' , '7* Promote developand encourage through the Massachusetts k ,s K ;, 37`t ` (g) g g r -'� �. bi.:Thoroughbred Breeding Program,the breeding of thoroughbred horses ,,k4 Y, ; 'z •t :� tr.�'.;,•, ti4 , h �, F,c in the commonwealth by offering cash prizes to breeders of such horses .?' '� % '': w.>:. in the following manner: the Massachusetts Thoroughbred Breeders ';1 , x ,.�`; ` °° ,' „1, '•' 1`a, ,j' Association, Inc- shall from time to time in consultation with the chair- t # h, , '4' it.'.., # ;; i man of the racing commission and the program manager for the equine ., :.division in the department of agriculture set the percentages for bo- - ,, Y `' '`, `; : ' t+ -' ., muses to be awarded to the breeder of a Massachusetts bred thorough- , �fi ry� y zp 4 t. bred horse, of the purse monies won by said thoroughbred horse in any x' t'Y t , 4 q • ", s '; pari-mutuel running horse race if said horse finishes first, second or t ., , .°!',,' , • ' ' 'i' 4, t third; the percentage for a cash prize to the owner of the stallion, at the :'xfirr u, = i-,..-,time of service to the dam of such purse winner; provided, however, a� 'ri :Y :`„t " ,: that (i) the stallion stood the breeding season of February through June ,. 3 i in the commonwealth, (ii) the horse finishes first, second or third, and ; r" �. `a (iii) said stallion is registered with the department of food and agricul- y z ., s w . `'�' ture; the percentage for a cash prize for the purse monies won by said fi F,' • . , � „ thoroughbred horse in any unrestricted pari mutuel running horse race °: + >: ` , 4 : to the owner of a Massachusetts bred horse if said horse finishes first, '' second, or third. x 7-7 The Massachusetts Thoroughbred Breeders Association, Inc. is fur- n ther authorized to pay cash purses for stakes races to be limited to Mas- f • sachusetts bred thoroughbred race horses from the Massachusetts ,,., xr ... g � • -, thoroughbred breeding program,at licensed pari-mutuel race meetings u authorized by the state racing commission. Such races may be betting 5 . -: 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 ,p { {i k4,„ t a ( y :0 shall determine and may be the sole cash purse for such races or may ;N, ' .45 .r a ,J ' 'k a F i•>: ° 'i. ,r,, 1 be supplemental to the cash purses established by the licensee; pro- ff r, , ,, ,,,F 5 t,, is , vided, however, that no person, partnership, corporation or group of ,*f trY.� .� '`' persons may receive more than five thousand dollars as a cash prize � . a4,N y , , � „. n 4" ; ...,.... breeder's award from the association for an individual horse race within Y ,ti = rs , < For latest statutes and case citations,call 1-800-4463410. ,fvv,e� Y� ,./'{ 'Y^`.'4.�`�4 r " '� a' '4 ' t P-_ tW t 4 ,,—, '3�,Yj .l. u. ;' x J. 1," " a .`i'T. f t ,.. .;.., r x "rt, +M""'+`F€7' vP "t . .. ( ,Fa -+Y 's*�• e is r r c r -•r Ym �•t v :.0., �, ,r t3`. '$u y- .:., t n.-3b* ,rat, r. arm° -; ,, 7a r(' a ��.- - ak -. - .. °-. - .- .'. ' r, -�_.. }+,F.-. .:'� `�,,-n a•i+. "fi':riil��nssai�n. �* }+ �..+.bh �r ss ';"w` �' �..+"" ; •a.�:: .: • s?: '` a• x� n ,:,,---0 r 4.as' i "`L-� ' ; e,a 1 Fa , -'T"44-k,-- f--'"�• x+ i y :d �i 1,"r .-,- ,.a y i-'y • �-x ''4,,r" in 4. � kV �4ie' ffro1, 1 ry1L + a1,� ' mse . Z 74v t x r 1 •r F , }a ? . .: 'i; ? t � «&�nXq ���. } ;0 } } 7S."b' ' &; � k�+S `5 " 4�4.a� iYi�w{ a A .. 1 :,.aka a� 1i,' C. 128 ANNOTATED LAWS OF MASSACHUSETTS 'i f , . Li„Y 5 the commonwealth. For the purposes of this section a horse race shall 44 11 , 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- o 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, tf_ ' ' -...110 and continues such residence until foaling and foals in the common- :` ' kjit wealth shall be Massachusetts bred. • (3) In either the case of subparagraph (1) or (2) each thoroughbred 4 , �' 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 le standing a thoroughbred stallion in the commonwealth at either 'r - ;'t 1.'1- ; private or public service shall file with the department of food and ,,: _ �"f`= agriculture: (a) a list of all thoroughbred mares bred to such stallion , ,, ,, ti_ i' ;',i in that year; and (b) a verified statement representing that said stal ' , m 3 lion stood the entire breeding season in the commonwealth. - r4 I ,;" ;1 .� ` The Massachusetts Thoroughbred Breeders y; , ,.,y � err "a g e ders Association, Inc. is k d, .1,�'' hereby further authorized to expend up to eight percent of the amount l', ,. = 4 '-'^ ,,', , . received each fiscal year for said program for advertising, marketing, }} ' rr f , ''i •, promotion, and administration of the thoroughbred breeding program '� t `r? `R) in the commonwealth. RiF Ar , 4' 'vy 4 " � The state auditor shall annually audit the books of the Massachusetts 4 r r , Thoroughbred Breeders Association, Inc., to insure compliance with 4f� � • o • r } 3 ,5�} ti� f this section. ' [No change through Subsection (i)] 1 :fair E r` x ci ..a �r.`<a .- ,, "; E'' ;. . , (j) Promote, develop and encourage through the Massachusetts Stan k f t {, z ,� Az dardbred Breeding Program, the breeding of standardbred horses to i;" L,. � the commonwealth by offering cash prizes to breeders of such horses in g`r , { 7,Y.. 4�,� 4 the following manner: a representative organization of standardbred .' f breeders and owners approved bythe state racingcommission, shall, . � �• PP { A , ` `t.,or-_ from time to time in consultation with the chairman of the racing com- w . ss„ }, mission and the program manager for the equine division of the depart f <T 4 ment of food and agriculture, set the percentages for purses and stal lion awards to be awarded to the breeder of a Massachusetts ; ",rtr r standardbred horse; provided, however, that a maximum of fifteen Y :`:% percent of such sums shall be awarded to'the owner, or lessee of the ; t, , `` `a A'' stallion who owned or leased such stallion at the time the stallion sired #t y'. a Massachusetts standardbred horse. r 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 w, ;. registered stallion on file with the department of food and agriculture, {, -. } 's provided, however, that the stallion stood the entire breedingt season of 1st-:- if t. ' ` For later statutes and case citations,see Quarterly Update Pamphlets. i 4•. 1i ti .. 'nod•:. � :'�•. .. ... .,r _ti -.-. ,. .. r _... ......i.t.. ......,,,, , ,i, a i T,, t• 4 -' t 4'4 Y2 (k ..,y A ', Y..Ew i. ui e f -,t ' i fr .. �y 4 ; 1 7'4, . P� $ . ... 4 '��: �,. X. F.tx! .i ,•" ), +., , ir. '•',+e a N,.,,,.kii x-W'•,1,�.• vv, i3 .,) ? 1:^.s N �",•_"^4.ar 44,f. h )4 c- l r i p>�Wk .;t4 T • AYE e�,3, '4';4i Yr 4 a htY Oar ; f i �` y fro • '' s p�} � r a'�� � l• .�3 A 4 z_y, t .{j•7E :. r { q {y t.,, 8y f { tit ,y a 4 Y l'xy. y Nf• . w a4NNN"'y ,xg ti •a e r - t $rot `T f ,>a , firer„t�s x-: 4<,.,Its., .1. ,r `...o tl 1k 1 Y5''w7f,L—4. ?:�+-44' irk sr w 4.`yfi`t;. 'z4-2 SUPPLEMENT TO CHAPTERS 124-129A C. 128 '-‘',4.' ' t . 'February first through July fifteenth in the.commonwealth in the year x ti • any.'such eligible foal was conceived. I. a„ c :The representative organization of standardbred breeders and own- t)4 er ers approved by the state racing commission is further authorized to pay ;�� cash purses and stallion awards for stakes races limited to Massachusetts € ':l;red standardbred race horses and qualified Massachusetts stallions «% r, I 4from the Massachusetts standardbred breeding program at licensed 1 .= rpari-mutuel race meetings authorized by the state racing commission. f, i } 1 Such races may be betting or nonbetting races and may or may not be ' $ ' S 0 t T/ij q scheduled races by the licensee conducting the racing meeting. All races k. b ) § �,,"�� k for the standardbred breeding program shall be held at a licensed pari- r. ,' ,. ,. i'.`T`' Fstmutuel facility. Purse monies and-stallion awards paid by the represen- ; , ..4: �;t' tative organization approved by the state racing commission may be s bra { ° •` y " paid in such amounts as the representative organization shall determine • Wand may be either the sole cash purse and stallion award for such races �,, or maybe supplemental to the cashpurses and stallion awards estab- _K ` t M 4 f` ` : 0,. •.., PP � t 4 >. 1lshed by the licensee of the pari-mutuel facility. ;�� ''- f,, �'c•,�:_ • ,�, `44 gr ; ���.�, nt Prior to the first day of October of each year, each breeder standing z, tom ; , a standardbred stallion in the commonwealth at either private or public , ,� n ,L - • a . y4,, 'service shall file with the department of food and agriculture: (a) a list ;. 'I': ;": .• r ;, x„.�.,.t s ` .. X tr of all standardbred mares bred to such stallion in that year, and (b) a , ,, ,,' 1� ,a T f , - verified statement representing that said stallion stood the entire breed- • ,„ a s S s,., ,µ- , ` r ing season in the commonwealth. , -' 4.4 xi ‘-, The representative organization is hereby further authorized to ex.- 'E t, :'� �, Pend up to eight percent of the amount received each fiscal year for said ` , a program for advertising, marketing; promotion and administration of � • ` the standardbred breeding program in the commonwealth. ,, , yy;', 4.` y _k, l' t The state auditor shall annually audit the books of the qualified , i,'Y 1•. . _ ?'-'-*organization :-r?' a4 3 t, �' ?Abf�kr sp 3• J.iN � 'a� yt organization to ensure compliance with this section. a� z. r� v� , , , ��°.` History- -;Amended by 1991, 114, § I, approved July 8, 1991, effective by act of Governor;July 9, ' s 1991,applicable to licenses applied for or granted for racing to commence on or after Jan 1, ' r r ' '1992; 1992, 101, § 1,approved,with emergency preamble,July 6, 1992. i s fir.: Editorial Note— . t t i, { The 1991 amendment rewrote paragraph(g),making the following changes therein:in the a', a .„_< first paragraph,changed the provisions relating to cash prizes,which previously provided for specific percentages as cash prizes, in the second paragraph, substituted "Massachusetts ! % f k "s- 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- d rt„ sachusetts Thoroughbred Breeders Association",in the fourth paragraph,substituted"Mas- 1 '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 5 t requiring an annual audit. i= - -, " The 1992 amendment struck the last paragraph which read: "The department shall t, �, , establish rules and regulations to provide for the expenditure of monies in compliance with the provisions of paragraphs (b), (1), (g),and (i).Before establishing such rules,the commis- y a ,• -,*); tit ,f, , Y' !", ` a1 ; sioner,after reasonable notice setting forth the date, place and purpose,shall hold a public p ` t,4r . ` f;, i't, hearing relative to such rules." and added subsection (j). Section 11, of the amending act, 1, �s,��,r h r4 b5,. , , provides as follows: 47 r`+ti v, ,, rt r,, ye ail k t wt 4,,s .�,i0 T '�+.n; For latest statutes and case citations,call 1-800-446`3410. '%;` `"°j{ tS.F Ti .110�ii -c i `r '}:- �' m r. t t3 a is,x T ° j M "+ tr ' 4 y .F y� 0 e-ayj' t P' 4t '''z `r r -rrr.,,. Z ,- -Tifr �] q t rs l,° , ' c.,Z 1 }1-4, ,}t�i xJ ,t.,.i.'o `4 §1 xk , �3 r, ;adi{A k• '..y ','.,,'. s,'t •• ei m,'t rf.ar}rrr iry rt s ,,I ' iL*,,,i ar n -'.1 .;i n,A•X,Att,'t,+ -i i:,.1 f.i N, Wx m 3 '; ('` ._,,•••„,"-,`,: s. a cif-'r + 'Y ., ;; .a v,9 4!:!, 'G�y 4-1 ..p 4 k},"f -1' 3` 7!-a o`'.,hq� W, r`.� _ t } 1 r. ": ii. µ f�i ^c.tee �{ `• _ ��. r� 1� '' -Jy• -'' -co x *4 , ', � d _ tF 1 1 , 1 �, 7; ��s ,r0/.� ,, i Rrw+ S r � ' ;a ` r ' .L...+ 4. vt +` .. rater C. 128 ANNOTATED LAWS OF MASSACHUSETTS § 2 t r`v i ac SEctioN 11,Notwithstanding the provisions of paragraph(j)of section two of chapter one F l ca hundred and twenty-eight of the General Laws,for theperiod between Januaryfirst,nineteen ;, Ql �r. ��'#c. '� , •, hundred and ninety-two to December thirty-first,nineteen hundred and ninety-five,the only fit11! standardbred horses and stallion awards set forth therein shall be those bred during the iSaT E ,:, period between Februaryfirst,nineteen hundred and eighty-three and ul fifteenth,nineteen July fit'•-..,` hundred and ninety-one or the foal of standardbred horse which was foaled by a stallion rc ' i'` which stood the entire breeding season between February first and July fifteenth in the corn- (;) monwealth in the year any such eligible foal was conceived. 4` .a Beginning with the nineteen hundred and ninety-two standardbred breeding season,each t. standardbred stallion must be properly registered with the department of food and agricul- ,., .• " 't ture: For the nineteen hundred and ninety-two breeding season only, the deadline for .7 t ; • �' 1 registering a standardbred stallion eligible for stallion awards and whose foals are eligible for -. }s spaa cash purses pursuant to this section and section two of chapter one hundred and twenty-eight 1 L'• = shall be July first, nineteen hundred and ninety-two and each calendar year thereafter, the s.•-a: '. 4 'i deadline shall be January thirty-first.. ' -)4 j § 2D. Sponsors of, and Liability in Connection With, Equine Activi- ,1 ",,` J; t„ a?z,', ties; Required Warnings; Definitions. ` i ` t< �,. (a) For the purposes of this section, the following words shall have the ,'' tE following meanings:— ' , } " "Engage in an equine activity",riding, training, assisting in veterinary - treatment of, driving, or being a passenger upon an equine, whether k _ mounted or unmounted, visiting or touring or utilizing an equine facil- r'i' f r � ti x I), a`:` ' it• y as part of an organized event or activity, or assisting a participant or Ito, 1 -,Ait ,% C• ri show management. The term engage in an equine activity shall not . E t include beinga spectator at an equine activity,except in cases where the �� �, s��, ,�;F �� P q P is .E 3 u r�� . t F spectator places himself in an unauthorized area or in immediate : 1(1 - t� , 4i Y vproximity.to the a equine activity. f F F �, ,f`11s q y equ F; , �` ' * !; "Equine", a horse, pony, mule, or donkey. Aim .. t ; k.x ? e ' ;, 4t.' "Equine activity" (1) equine shows,fai-s,competitions,performances, ; par s ,, i,', � ,* �:� ' or parades that involve any or all breeds of equines and any of the as t ., •4. 3 6 �„ '` equine disciplines, including, but not limited to, dressage, hunter and 3 'sen "=it- , If r; jumper horse shows, grand prix jumping, three-day events, combined rec tt r; ; " 1- training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, oth English and western performance riding, endurance trail riding, fro. r• 4 . '1,..., �,� gymkhana games, and hunting; (2) equine training or teaching activities > ;( p 1 . or both; (3) boarding equines; including normal daily care thereof; (4) 1 tio: t- , a riding, inspecting, or evaluating by a purchaser or an agent an equine r t • , belonging to another, whether or not the owner has received some 'act a ';4" ' monetary consideration or other thing of value for the use of the equine 3 act ' ' g or is permitting a prospective purchaser of the equine to ride, inspect, ;:: 7 4 = . ,%, or evaluate the equine; (5) rides, trips, hunts or other equine activities s ?.. ,,xtt•4. any typeimpromptu sponsoredby .r� � �k �., --7- ,' , of however informal or.im rom tu that are � an � � � ' �; • ;; " equine activity sponsor; (6) placing or replacing horseshoes or hoof ' . .t- Y .� `ti trimming on an equine; and (7) providing or assisting in veterinary .,,,,Am treatment. VYr. "Equine activity sponsor", an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or � ,p �{:: `. nonprofit, which sponsors, organizes, or provides the facilities for, an 4. <,, x° . equine activity,including but not limited to: pony clubs, 4-H clubs, hunt -' If x., c�k. clubs,riding clubs,school and college-sponsored classes, programs and si N� w� '4 48 1.4 YOZate; + I {{ For later statutes and case citations,see Quarterly Update Pamphlets. hF -rt?,/t _ n Y` I: a } �n.. 1 w+s . ' , ,ty4 ,74-+7� ,1,, ' . ty.r .1,;'� r.* .t ,�j7.7 ''':a 1'.',`i`l t.•• - a a `� s } si - F .;—,4, a i, � t rr � t_- .' rt > -5, H is ''' 11'x+_., _ - st•.f . _.ii a. F i .', 1. ra, :Cr' if :' a.tsc m_..' Ft, ' . - . . >t . 1. . s, . ` . :�._, .'._ i_ '7f__..t _ e..... .; ... ><0. f cF." 14 :±d.F: .t r ' f/..:_, %�G 4!1. t"c�- ik., s X ''sue' ,, .sr s Fp"Gon '.,,r?t ',70 s,„ q,,,,„.tifi n k�F ' . ' .s ? �,j s�at"! ap c Y `' t 44.� Q' •!..,', 7: 1ri r�r , YV y yrk.,} 4 yv 1,7. "� s "yy ' ha s ; a Y•; #s e, s w o- fi Ar 4 +a :t 1, 4' >,,r.� ir, 91 a" r' 'r} r .t 4, 1 • v r e-' 4 [ .0 k �e .r i. CC. r t s a- �r �'sT -t t' '"i � s 4 �`1: 1 L f a'' �,,, Y x s ; .s 't t t.'• m' { , ft ,. l,{5r t • it 1 - 9' 1 kl. \y4 I $`AAi -i 4 4 Y{ S 1 4 L r r $'. I - ,; „ ° 7,,hy {£' i , �g - jY • ',' , t.':kl f tt y,,= tl:'a�r 4_"`a _i +x� r f.,E x ?u,• ,..r,Ffi � '....,-_,..,,,„,,'1 -6s....--rd s ': F,3 dd* �s�,*P 1J t}�d W: '�e4, t i,a;aY:,}rk>rt+'riK.. ut' -.t, � 1 4 �` as {'t #l.ra t a e x � fi 4 } y. ✓ f k '1 `Arttp a 2D SUPPLEMENT TO CHAPTERS 124-129A C. 128 } • , 9,�1 7S ��,,�``Y"�. 'iy Spy 4 - ,l , activities, therapeutic riding programs, stable and farm owners and i ti P operators, instructors, and promoters of equine facilities, including but 4 �; "4 riot limited to farms,.stables, clubhouses, pony ride strings, fairs, and • fi . arenas at which the activity is held. Equine professional", a person engaged for compensation: c { , p"'"^'(1) in instructing a participant or renting to a participant an equine `1.¢, : . 3� for the purpose of riding, driving or being a passenger upon the sf t `F, .'' y ! }� equine; (2) in renting equipment or tack to a participant, (3) to g , dti, j� 'TA...*` '` k ~ , '1 'AAA am �t provide daily care of horses boarded at an equine facility; or (4) to k • 4r s, ,t V. 41, a., t,� . •; t�rtrain an equine. .,. r ,S ,*, _ ' 4; "Inherent risks of equine activities", dangers or conditions which are "„ f�' ''F „, £ M Y a' �;; : �� an inte alpart of equine activities, includingbut not limited to: �r{} _, ,,,,,,,.,-,,,,-,4.{,,,,„,,. . ?,fsr �5 gr q ;: � t #Y: " -, (1) The propensity of equines to behave in ways that may result in w 4s 7 P¢ s N1 rt Injury, harm, or death to persons on or around them; (2) the Y f , r a�„ •t ' 9 ,', 4 a -.;' 9 hr +.Ai' , 'F 'I..; } a unpredictability of an equines reaction to such things as sounds sud-. t , , u ' den movement, and unfamiliar objects,persons, or other animals; (3) �1, s; 41, , V:t'ali ti ;3 ' ,' ;`Pt '.¢,,apt ; s,, iY `{ certain hazards such as surface and subsurface conditions; (4) .col 1- .,,-,;,,;„,.,. "p�ii; �k' *r f: jt" sions.with other equines or objects; (5) the potential of a participant `. , F= , -t„ 'X a" "�' 0? 14"'t ': to act in a negligent manner that may contribute to injury to the w. �"� t `q�° f M.V i L'F.. b participant or others, such as failing to maintain control over the £ , °h ,,' 4 rx z ;r� .`;r r � . animal or not actingwithin his abilit a w a, r y• ,{ „,• '.a�#_r ,i, s w r 111 -4 Y'S ,y'e {A f$ "Participant", any person, whether amateur or professional, who i e �, x" g engages in an equine activity, whether or not a fee is paid to participate ' ' =`' '^a'�.; '; � � b n t ' in such equine activity. ° J t YF•'w r y.. 2 r '(li) Except as provided in subsection (c), an equine activity sponsor, an tits" "i'; 3 l' s�,',t j$x , ' y � ; e uine professional, or anyother person, which shall include a cor ora- i = '" t}="4' x . �. P , P P rr k� ,)4 ' `''.1,-''.'”' r?s ti1.-, st, ,i;. � Lion`or partnership, shall not be liable for an injury to or the death of a ; ,`� t'' x �j,,.- ; .• participant resulting from the inherent risks of equine activities and,except ,ry.r s y '- as provided •in said subsection (c), no participant nor participant's repre- -,' = ,rk`� '7' °r .' ' >i. ` '). sentative shall make any claim against, maintain an action against, or fi �< i z* r 4 7 ,, recover from an equine activity sponsor, an equine professional; or any ; 1 sir y" . ,x <� '� other person for injury, loss, damage, or death of the participant resulting k` . from any of the inherent risks of equine activities F• � * .-(c) This section shall not apply to the racing meetings as defined by sec- s fit, w lion"one of chapter one hundred and twenty-eight A. i a �" tpa" " ' # # 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 ",. ,< M , ; activity sponsor, equine professional, or person: '= , (1) (i) provided the equipment or tack, and knew or should have 4 known that the equipment or tack was faulty, and such equipment or r:'t fi ., tack was faulty to the extent that it did cause the injury; or (ii) provided e t A f `fir,, the equine and failed to make reasonable andprudent eforts to = -'determine the ability of the participant to engage safely in the equine ik. activity,and determine the ability of the participant to safely manage the t,t. ,, yH ;: particular equine based on the participant's representations of his abil- °� F A ( _ . t ;; (2) owns, leases, rents, has authorized use of, or is otherwise in law- . u-4��p,�.' ` is' , x fi u�,. ,, `°z• ,;`r �. F ,„,y ,,, t, E Ids i i€,k.� b-emu t?R.q,,,t fulpossession and control of the land, or facilities upon which the t r}p r' 1 y 1 � ^". , T i s ��49 +. ��i „ r i.tti. Oro , ,t '���_�y,�--:� tii- �cti For latest statutes and case citations,call 1.800-4483410. .t+,.,_, ?mot, '.1, , 4,2- i it IV ,,,;!,4 ,i'Is- Y na, e`" sfif, - y L s r r3 - sGrR Y ,tQ'+y's5., t # ,41ir i'�- .y`,-{ YR':q c,r r,,',��:;` £ 6 �rt'� �,t... a �'S°y,i„„y�},t ». ',! YtK a 1si'?, ':gri yr e,§a" F' .s'f ,t - .{ :4, r S;Cts3. 3� } ...$'' �3r,�.,- y A i.. t yB. -1,,,, Y t L Z� t 1r:tc- •L`:- se , - s[k t ss ,i, ti '3 r �t ri; t .'. v§' ,-$l.. "!'`t➢ 3j-W." < W-Is'-'a.-,'s .1 ic ,�3Y's 1 s ,',:,1,,,,,,,,,,,:„..,:;,*,,,-:*.„- y.',d,+_m w i,Y L f ., 3rhixyl $#4xa,.: ; . . , sy , r p x s �t. :7. r. t :r� 4 ✓ F R t n '. "�i ��@.k s1..,t a r ,w.y .4 ,. ( d dk . h iti: is y. Gs t €' , f a r 1kaa �w , r , . , ,,4' t S V q d y« H • "'ell,*', rE to a J' :�jn,a+ k "` � , y vr . ., rw ., 4 rr,,4I .ttr`g k� � t,aa - t ktt s, r sv J �, at T, S�t R e iyw .s a t e', '. xc: *H "!: eriy a�tt, P 'f.•i �" rg t o .x?• I i] ",.� odelit 5 aaiRo7�f: �n 4x,, us ti 2t3 31 } � 447i. 14 41 C. 128 ANNOTATED LAWS OF MASSACHUSETIS ' %• ' participant sustained injuries because of a dangerous latent condition � r,+p which was known to the equine activity sponsor, equine professional, or ',..,,,..4 S t . person and for which warning signs, pursuant to subsection (d), have to not been conspicuously r P Y posted; 11 11- (3) commits an act of omission that constitutes willful or wanton I tot ;at disregard for the safety of the participant, and that act of omission t r: caused the injury; or x . u( ui • (4) intentionally injures the participant. • I. (d)(1) Every equine professional shall post and maintain signs which Se contain the warning notice specified in paragraph (2). Such signs shallbe ',,encu placed in a clearly visible location •in the proximity of the equine activity. f Z° sh: K The warning notice specified in said paragraph (2) shall appear on the sign • re: t,, • ,-" in black letters, with each letter to be a minimum of one inch in height. •wa ',; • ; },,f;`f Every written contract entered into by an equine professional for the # , .. ,t `.; , providing of professional services, instruction, or the rental of equipment :en ' , . ff * or tack or an equine to a participant, whether or not the contract involves ico , a; rx • 4 equine activities on or off the location or site of the equine professional's , ''''''',VP business,,shall contain in clearly readable print the warning notice speci- a,. 'a 144 fled in said paragraph (2). ;le i- • , �p,,'R,•• t;.t :i f (2) The signs and contracts described inparagraphshall contain t., ; , a: (1) CO ' T a w r. SI r', the following notice: . + _5 : }4 t t ,tx", 4t 4 + ''' r,: } },4 :i Yr �Fc i WARNING 31 j F z ?'' *,¢ Under Massachusetts law, an equine professional is not liable for , z r; r�" t> 4{ � an injury to, or the death of, a participant in equine activities result r r � 1`,t r �1 .,4 3 <, ,4i ~d. , . ing from the inherent risks of equine activities, pursuant to section 7 `; ?,_ig };X , h 2D of chapter 128 of the General Laws. t;t< rt .,• ;., • 'Kt�:x � History—: i ;Ili Q c z, Added by 1992,212,§ 1,approved,with emergency preamble,Oct 16, 1992(see Editorial a ... Y4,`b us ,� '# ,^ 3y,,` ,s r a 11k " Note below).- '..Nc c ,1 ,r' ,f, t {h at s 3 r ` ��d ,. Editorial Note— ,Ec • ` '• �t 3'+"1 1 Section 2 of the insertingact provides as follows: J µ`.. Y"r 'x ,4.43 ;1 SECTION 2.This act shall apply to causes of action filed on or after the effective date of this fi .• act. T ih. t 1 , s (; $ " . ;: ' ., Research References— .RE ";f f �, 4 Am Jur 2d,Amusements and Exhibitions§§53, 54, 67, 96,99. _ y y z ;-,f j 4 Am Jur 2d,Animals§§86,87, 100, 103, 104, 106. l' • 1B Am Jur PI&Pr Forms,Rev,Animals,Forms 151, 157-159. z y ! 13 Am Jur Proof of Facts 2d 473,Knowledge of Animal's Vicious Propensities. F, .y,• i 25 Am Jur Proof of Facts 2d 461,Failure to Use Due Care in Providing Horses for Hire. S Annotations— t44t t Liability for injury inflicted by horse,dog,or other domestic animal exhibited at show. 80 „ tp s " ALR2d 886. i z in a� Liability of owner of horse to person injured or killed when kicked,bitten,knocked down, ;=�ih Fi and the like. 85 ALR2d 1161. f ygJ�l,' A } ,:,:. y .t T A tR .. i ti�ht ��,' Liability of owner or operator of horse or dog racing track for injury from racing opera- , ,.t ,.. $ r"�t tions or condition of premises. 87 ALR2d 1179. ii t}; Liability of youth camp,its agents or employees,or of scouting leader or organization,for z• eit injury to child participant in program.88 ALR3d 1236. 's(b 50 I For later statutes and case citations,see Quarterly Update Pamphlets. ` , t i . `•,..:r "s ys'it- 4' ' 4 r4 `� 4 G , ',=1 r . t ,,—. i t tk '; - , a ` iRr''.44.PxA' � ;_ � sr a , r 3,, •, r ; � `_i} , , t, k . N k v s ,.. if Sf .�7"3�t•. t°a p 1 .s R,n , r pv , f ` r .;4'g'a if.M_ exa "J..a 3'. • ..: ',TY •44r tt r s„ +3 *-: .".....,� 01>r.f '4 1'7}(°�j;' �� X `'. eK • �('`:';r!' '�- - 4. r� E ^F i �y 4 d ': i ... � + ;..y ++ d !`�:.y�v t a (,�t fi "r1+'is # ' 1i N �.�, t t# .Nivw 1. 3' q � r ! s v., "' ' a, .:Y ''b-f i"7a s. 6 - :' t i 4 rt . t,yp w:l J �. r4 ry bd a4. t M s 3F _ ''�,r - � yi'. v t-i- '' �,:.''y _ . 4 1f cyst 4 �:2 {9 a ,� q ,".fi.3 r !x r A :.t. r [. F r f '' dti "' ? S •�' 7i r�:s' • itJ St Y 9. „. � :iM t sF s ! ' 3 si r r ", e h A ti.t s t -i" - s YJ Y ` F'is Y 3 �"F L �jt r f -• S �x? � 3 w "'a ,� +ram ra'm Iy r a ey '�`r , trt� � � t•t 1: P .� t a S+r e xr`?Y> '"�p ynp- fa. � S }j, '� y r"`�' : r ",� 1 {+ �� -':w i.- n y� e y a ¢ t t'���y+� r r ^r s tq `t vk',;, ,, s J e- i 1 + ,;:. t t 4, r rt� -' a to t ' }•;4 {. _':, + tit S t }r ,. t ff a n yya - ' l ,mar J - , q'-,4.4 ,�?4.- , .' ,,,+ 9 4,, f. .,r . -'in ! tr ',A ..t+ . i -:4 } s r `�" £ i..• t.,44. ., V' x p F1 , s k Its >� S ::� 4 . x ,.i y, `' 7i. -t f I• 1,ix st' 3 � ' r -(p r�' xi '. i 4 u�.:s. Y{y�1 .� Y , �t 'ry Ft-• ''f'••',°'' 4 tP's- r^ty; t .ra ad '.._'r <pp: a S" J`: �*.+:'' a f't 1 xt 4 . .4', st r - s qt m t '' ?'- , '� _; r= " ? .6`"1.. ,i '.jN. vt y4Wt a°" 1 ,� 'S 's � f �r i *t<" �If, tads} ':, S' R r.;'�K i 4� F L;. uYv iii'' . r,' z'L '°�',*f' 't d•s'1. ,.,.. i"r ,1, k ^•t,.yr' a ,s..., tg ol..-'t .. 'k+, : ✓t ,' "r' b i tk,. 1...,. ,,,,c„ 4:. i �4,40ii `gr. < t �,5, e ':r �: k , ,� _# ,.: � 1'-Asi� to , ,t °s.f7f: Fryk d{XJ !. ,, �,,' 4� 1" '' t s:�t-' t .--e- a i72, SUPPLEMENT TO CHAPTERS 124-129A C. 128 :. s , ,�? ,F¢`. Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof.6 ALR4th t P, ?•, r, x p., 35$c rr�„Liability for injury or death of participant in automobile or horse race at public track. 13 1 e ; ac ti .` • a� G. Ai,124th 623: .i t „ "r ea-,- ,; '41;Ltability to adult social guest injured otherwise than by condition of premises. 38 ALR4th '' + t• 's P' 200 s ' s �r f ,k r: .�,t „ ,y���t R' y i'Y'4!f 7 '"' •• • :t'�1 �"„r•�. '"rl',Pr i S 1y t AF §X 2E. Limitation of Liability of ``Pick-Your-Own" Farming Opera- "� ;dz `tions,and Their Personnel; Posting of Warning Notice. , t + � ' xt7`No,owner, operator, or employee of a farm who allows any person to �; �� • J is h'& y;rz��}`v1 enter`said farm for the purpose of agricultural harvesting, including the �i, ' 4 ;u,-,�k i t• i,: ., cutting of Christmas trees under a so-called pick-your-own agreement ,� s; t � " r. shall be liable for injuries or death to persons, or damage to property, f,,„.,,, x w1" {3 5 i °' _t .,i• ^" .,A ''` •: resulting from the conduct of such operation in the absence of wilful, } wih , *4, t� r,�p ",`a . . ? �" ,' wanton, or reckless conduct on the part of said owner, operator, or ;;" 'f;�; .y 4 i , ;, - ', �i� ', employee. r� a s a,4'v •i,yr;a 'f- i ,+ ,r ; i::a r: '...-;-:',-'Said owner or operator of said farm shall post and maintain signs which °S,'' 1� ^fe' r fix/ ,, b !a ,i [ - >i``SG , 3• � - }13t,4 L.4 4 -Sr E j 1, . •1�`"h• F gym; contain the warning notice specified herein. Such signs shall be placed in , t- v vie, r , f V �r th 'a*location visible to persons allowed to enter said farm for thepurposeof • * ,kA. ,*r,, +, s tt ,0 .`a. V. i" agricultural harvesting. The warning notice shall appear on a sign in black 'f '' ' ;* 1; .^Vi� ' �I ;_; 'd`k q letters, with each letter to be a minimum of one inch in height and shall g ti �� , �u . � 1 � k, y, ,� contain the following notice: t` � ''frv•, • i,J - ` y7. �Y,-z�• # py1 �" kF �`•+,a, ;i a it 4't; -},•,.,t�f r 1',+ `),344�t7 i1'. t Ct; a s WARNING �r t..4.l t.+, iti+v•w4y t J4 `*y"z'r G , raP4> Under. section 2E of chapter 128 of the General Laws the owner, ;�, y �° \,i" 'i ', c� w"t`t ,f L^ P 4 r - ;`f,>y' i ,, -Sv }�.1.,- &S Ta+'2 of t 3 operator, or an employees of this farm, shall not be liable for injury or r . 'r ''s< ' i death.of persons, o damage to property, resulting out of the conduct ' ''''J ,Y)s± l�k r� "jM r' "p • „ !,3 yy t! Sj m s {+�. ..'s ivy d.t7.fi 1 'kF+'Sj :�. of this pick-your own harvesting activity in the absence of wilful, 3 } ,` * ; ui ` . ,• .wanton, or reckless conduct. d = td.,o mrt{ ., r,,ift x a,^ ,r r f -Lf.t).t : *`• 4sry t �{"t?#� J`f�:•.4 y;f;-.,3r k,y.t 5k 5,p 7'1.. 7 History— :'' '1 :: Y Est P its' +*• � ,F�,•. S ! L• r4 `6 *Y pr Added by 1994,89, § 1,approved,with emergency preamble,Aug 12, 1994 (see Editorial F '''' " l ' r a c > y,• z'. Note below). t - t :'s o, _ S; •a fit't{� �rttt}y •• 1.K' T't. `1) f ., �.'ri fag Editorial Note— a.r , s t • ` e h „ 2�' I'` Section 2 of the inserting act provides as follows: 'e+r v �,`' x 31 t ,&,i`1 �`, SECTION 2. Theprovisions of this act shall apply to causes of action accruingon or after �`"� ° a" r Mw tyt�w� i PP Y ;Y:, i •' 5 4e 2 . the effe_ctive date of this.act. F,>ra, t 4 ., i•. t � rk;laF j_ d Research References— ¢. a • w'ss. 57A.Am Jur 2d,Negl §§49, 55. !:? E+ v ` . yt: ri>T JY.q INSPECTOR OF APIARIES '•'4` ` r, ' i i`t. `; its §,32.. Duties of Inspector; Regulations by Commission f " ; ; There shall be within the department afull-time-chief apiary inspector %:� ` x , s f to perform the duties of the department relative to a program for the a Kee • t y inspection and control of bees as provided in sections thirty-two through °` ''A 4 Jr F " -thirty-eight, inclusive. Subject to appropriation, the apiary inspector shall 4 a 4 r r; to fi;. have a staff to perform said duties. With the approval of the commissioner, �� 3f ,7tF £ u�� �k : the inspector of apiaries shall prepare and distribute from time to time ;,�,t sr -,, r ! t, �k i P P P P r� , ,•'!„- riif_ t •s �,• , •n x. such_literature upon the subject of bee culture as he deems advisable, shall , , � , ; YA F L�.Yt.. ; !:47, �',� µ 4, `,1! ,' For latest statutes and case citations,call 1-600-446 3410. a ,r,>a r$ '.� ` Ly' �•,' ' :;'{ r ac,.�tsn7 -. r t: 1� t J!R i7 Y'3yi^,-"i � wx '{,1(�';4 %t s •- �g ..y t i . L - ai, ,d ,`f xr`C'ir ' 4 e 1 , t F p - Y J* 1 �ry f_p ,� [2 ;t,'11'13 4s*-:1�' ' .. kp i',y,''h+d�1&,}v .0 „,, S y t 4..lst4f r �f.Y� Y 'c4F+"+ ,«.�c rt S' ' '1,t„t '.. ,'- Lika', S 4+3'W Y`,�,. ,.)' 1: {x y.'8 r i "_, i y_1t ,. 4 4 '.,4 , .-s ' 'ru` ,.fi�`. 4.0 Y �S> _°b i cf a:-r-,—4. .i .'W-t ''i' 4 tt r-,Pr 4'' a 4 ` y-, A 3m ' �asi .-\. 431.7;4 " ; .s ?', ? . iik k ;y-ryst,no.. . , �f' r T r } r t*y i h .. t .r, 7,1^N1,4,-- %, Y � : o. 31 • iaY ,N s . {,: ?,s ly, ¢Jt s ,, '7 i .-At ' t ;."V 4 i ."9';'4'': 'V�ar .: 11 4 � 15•?'1' R �M� > ' 3 trr S'� tarr �,n t fr �t r , . h«rx. b 4�{7� i t'af � 4�i f 44,444 ' AF ' '' ' L' tR y k, t ' r rM a k1 "221 f'rKY -Y �;*. : •;tr' K+is "r 1 ri + e a ` a1i a w,o, ' ' "ae m t y" i s ` r r Nr r£ r' 1 .1�1. 1.. :;1' t bs1, Y13t , i, t crt•. x' '- -, :+.:Vtt ,, • A 7i.t 1176 Mass. 527 NORTH EASTERN REPORTER, 2d SERIES lo •' oo, property.' The judge instructed the jury resentencing the defendant as upon a ver- f, otherwise without objection. The defend- diet of guilty of simple wanton destruction ,--, 4 4 ant claims that as a result of the judge's of property. '' p_ erroneous instruction he is entitled to a SO ORDERED. ktr . 7 new trial. We disagree. Although the judge's instruction was er- w �,, r ' y ror• , it was not material_to the defendant's e, E KEY NUMBER SYSTEM Zt- conviction. Indeed, in a sense the instruc- tion was more favorable to the defendant than the one to which he was entitled be- 5 91 cause it required the Commonwealth to N' I prove an additional element in order •to 26 Mass.App.Ct. 970 �'t=. i convict the defendant of the offense. 1 . rrw �70Mitchell STEEGE et al '4',o '' [7,8] However, in a different respect lo >tC y. the judge's charge did harm the defendant. v. , ,� t1, ', BOARD OF APPEALS OF He instructed the jury that the Common- 2 ,. ' a wealth must prove beyond a reasonable STOW et a1- It • doubt that"the value of the property dam- No. 87-1259. age exceeded one hundred dollars" (empha- , to i c� � f Appeals sis supplied0 ). This was error because, un- Middlesex. Court of Massachusetts, o .,:f, der G.L.c. 266, § 127 (note 1, supra), it is '` a `; the value of the "property so destroyed or Argued June 8, 1988. `'1¢ injured"that must be found to exceed one Al-' hundred dollars, not the amount of damage Decided Sept. 9, 1988. � } , ' x= * , to the property that must exceed one hun- s ", Fl dred dollars? Although the evidence in Property owners brought action ' t , "{ ,a , this case warranted a finding that the val- against town board of appeals, town build- r ,'? < ue of the property so destroyed or injured ing inspector and town, seeking declaration i , was more than one hundred dollars, the that their use of their land was agricultural �1 i jury were not instructed on that point, and and thus exempt from local regulation. P g ` ,c _ �Kku4 the defendant was found guilty and sen- The Land Court, Middlesex County, ruled rotor, , �y v tented for causing wanton destruction to that operation of boarding�stable for hors- ,. r. property of the value of more than one es and riding academy was agricultural use ei ; .p ' " hundred dollars. That was error. � � so as to exempt property owners from pro- le ! The judgment on the complaint that scriptions of town's bylaw, and appeal was r , j charged wanton destruction of property taken. The Appeals Court held that prop- ' �5 aAtA valued at more than one hundred dollars is erty owners' purchase and raising of hors- ,,.'� ,;1 I vacated, and the case is�70remanded for es, stabling of horses, training through op- n tZ 'I I. The value of the property destroyed or injured 2. The judge may have been misled by the jury 1 ' + only affects the possible sentence of a defendant ' instruction on wanton destruction of property tyre convicted of wanton destruction or injury of found in Model Jury Instructions for Criminal i + property. See G.L.c.266,§ 127,as appearing in Offenses Tried in the District Courts (1983). f c h• 4 t; St. 1982, c. 229, § 2, which states in relevant 1axr That instruction (5:30) provided that the Com- o' , i _ part that"if such destruction or injury is wan- monwealth must prove beyond a reasonable ton, [the defendant]shall be punished by a fine doubt that "the value of the property damage of fifteen hundred dollars or three times the p p h 8 s- ., x`t+„ ' exceeded one hundred dollars" (emphasis sup- s- , value of the property so destroyed or injured, plied). That instruction has since been correct- ', f' : whichever is greater, or by imprisonment for 1 ed. See Instruction 5:30 as revised in 1988. 9 not more than two and one-half years; if the value of the property so destroyed or injured is t 1 T n' not alleged to exceed one hundred dollars, the 1. Katherine Steege. E, . $'u punishment shall be by a fine of three times the s A x *i value of the damage or injury to such property 2. The building inspector of Stow and the town ` I t; or by imprisonment for not more than two and of Stow. I one-half months...." ,i ti,-1 ! ' It l;j I ?I1. 1 TC.. 1 i'; eaGM ;r tw _or-v Ace4 -,4, 3 r "3 *..... ..4 _ , -' $ F:. - ; • ...,' t,.+_*, ,, ,, err�`5 , �.00 R ?v.' 'el'.;'. #' b. 'a �4; s� .", Ak�f Er ' xp Cyy t4� �� � 4,' a 40, .,I5,;r .', y•; z�V a i{t a°,✓ ,° w , ." t . �.: .wi' t 'yts r • 't { { Mi,4-, ,J03 • thl ok , V.„4,,w � r ,1r . ' nE ; .,-•" ,. + , z ,, sS , , gw( N t } ,.;; s , �;1„-',.• ' t. C ,t 1a, r ja ,.. 1 < ts ,*, tl tp . A4 ia,,, § ?k , 4' • , I i Y6 srn- 1 K� yai r '" i h 4} 1,,,, h u ! 'el' 2 k • j f jW , ;�., 4 z+ ,, .a t 1x,. � j�d M� • }�`a�'µ r. �i_1d' A' 1 M.ii: ,,c , t^ t ,i",r`.`, 1 4,: a F . 1 At,;it: 5 t , , ..' ,'.S ' a # 11 3 t1 ;,, ,1yr'4 ji'l''f''1 i.'' y,.a s'.,,r ,� .- ��ii`tt Ltiii,At•r;:/4t.*14,,t,..,4.. `=1A,..�. ,.-4,.2,11,i i'.5.,_ara r s:? t�iii '„ I i i ; ,5 :1.if,';'''Ail'1! e a r STEEGE v. BOARD OF APPEALS OF STOW Mass. 1177 t 4 ' :. i'‘i'I{ '', -..it:'1‘fitt:''.;:i'':.4f,,:1'''.' '1'1*; k f';4. ft Cite as 527 N.E.2d 1176(Mass.App.Ct. 1988) I t f ,� ; , " eration of riding school and participation in for giving riding lessons; and for the rid- i t i ;, fre: ' horse shows was "agricultural use" of ing use of owners of the boarded horses. it Q , `�;�` property so as to exempt property from The premises have been licensed by the : 1-i ,,k`t t #' ' T. `- town's zoningbylaw. Commonwealth for the operation of a rid- ii' ".ilk . . r. p- y ing school. On August 2 1984, the build- r li s ' e „ ,-1�{ Affirmed. :A' ''' ' '44'i• 4; ing inspector ordered the Steeges to"cease ;1st', ', , i ;� and desist immediately the riding school 1 `•t( r. j 1. ; # "': Zoning and Planning a279 operation...." The order stated that its `: 1 y .?4` 1 '4 FX Property owners' purchase and raising enforcement would be "extended" if the `: z` ,y� ''` 2P x of horses, stabling of horses, training of Steeges filed for a special permit with the .,,•c • ,,• z ' •',>:` horses through operation of riding school board of appeals (board). On September 'P'. r.; , � and participation in horse shows was "agri- 13, 1984, the Steeges submitted an applica- k ii i `';:. 7 ""�. 4,ti4 cultural use" of roe so as to exempt tion for a specialpermit, underprotest. h+ r " property 1t3' P P i; , :k '' I,� / r: { property from proscriptions of town's zon- They claimed that the operation of a riding t ..,�, ' •.- ing bylaw. M.G.L.A. c. 40A, § 3; c. 61A, school on their property was an agri- a r ,f, .� i, ,4, w ,. yea , ',- „''f . ,)r, �.' §§ 1, 3; c. 128, § 1. cultural use and, therefore, exempt from . . k ,, See publication Words and Phrases the proscriptions of Stow's zoning by-law. t, $ , i L. , �'�� } for other judicial constructions and See G.L. c. 40A, § 3. After a hearing the j` `'''i�, " ' ,t '� a F' 1, definitions. Steeges' . ; d' ,j ,'; .i ' ' 2i, board denied the application fora I ' , r. � .�, special permit. I ,l' �- '1 : .', i' , , .Y.l`i Paul Killeen, Waltham, for defendants. The Steeges then filed a complaint in the .. . I , ., �A�f l,k;, : x John P. Zelonis, Jr. Boston, for plain- Land Court against the board, the building ,F1' r i , ~ems r� } tiffs. inspector, and the town seeking a declara- j rf; 6� 1 t�i �� R; tion that their use of their land was agri- Catherine �<a# �Jt��' i Catherine Clement, Sp- Asst. Atty. Gen., I it , •;`4i,rt'i+'P h;. cultural and exempt from local regulation. `; ,s t� ,M1 for Massachusetts Dept. of Food and Agri- r i p „i,. ,,;, culture, amicus curiae, submitted a brief. After the trial in the Land Court, the i1 lick ,, 5-1h 4. +eg 1 judge filed a memorandum of decision that ' . '`. �,�t ;., a3 Before PERRETTA, CUTTER and contained her findings and rulings. She A" i;fr`-r 1�: '-" i SMITH, JJ- ruled that"the uses made by the plaintiffs '� ri .jr t f 44M ' 1; , �.f'� f�y, j b. of their land ... are so interrelated that a Mufti• , , .. , . RESCRIPT. they comprise agricultural use as defined \ ,';+f ', '.41C..f t,..; 3: This is an appeal from a ruling of the in G.L. c- 61A, §§ 1 and 3, and G.L. c. 128, I , , =;",., , 1,Oft f rt, Land Court that the operation of a board- 971§ 1, and are therefore exempt from the 11, , x s f, ing stable for horses and a riding academy requirements quirements of the Stow zoning by-law." t- ,ti`.,i;. ' • is an agricultural use protected by G.L. c. The defendants have appealed from that . g 40A, § 3.3 The facts are not in dispute. `, :It ' decision. s,• , Mitchell and Katherine Steege are the General Laws c.40A, § 3,as amended by M 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- I• ,`, r 'x ,, residential zone. For many years prior to law prohibit, unreasonably regulate or re- If s <' '�r August, 1984, when the Steeges first ac- quire a special permit for the use of land . s j . -: }, T . a quired the land, the locus was part of a for the primary purpose of agriculture, i ^ , ,._ , 1; twenty-five acre farm which had been used horticulture, floriculture, or viticulture; `.,, x�i g,;,,' as a home for ill and retired horses. From nor prohibit or unreasonably regulate the 1 . s l i . ,•, ` the time they acquired the property, the expansion or reconstruction of existing �1 t 4- t; itii Steeges have used the premises for the structures thereon for the primary u P rY purpose ose , '°,E ' ? t r ,,,- raising, training, and boarding of horses; of agriculture, horticulture, floriculture, or , tt; � , ; i ,r 3. As an alternative ground for ordering the en- of that ruling has been made an issue on appeal ! �1t h‘ 5 p ,1 s, ,,l'1, 'N try of judgment for the plaintiffs, the judge by the defendants. Because of our decision in ' : c;} a ' {��y. x „ ruled that the special permit had been construc- favor of the plaintiffs in regard to the "agri- ; ,,,r{ ,I , -'• fr,... tively granted because the board of appeals cultural use"of their property,we do not reach i iki • - r c r failed to take final action within the time period that issue. , a', )a, - mandated by G.L.c. 40A, § 9. The correctness . �!' e 5., ,a`` • , a.a 2 `r t :k:.&'per I :j% 7� 4 TI ��{� TF 7 i -,i:•. -Z: ;1'4$% i Mi' f 4F rr l 9h' 7 k' •���� . ! 1 '' §^ ^ ' •:, ti, i , '�,�*ir.' k 6,.,.f� lsrq e�54 � -• y ea P �74 ".,�� 6f p S t`r`rTtte �et y e S �F ,...0,. Cli,..7- ^ a ' i; *-af YC' a -e r k ,4? � Nit . r , wewIl • Y f q p';Sf b`C ' a1 , d' .rt ,f' ,. A' t r7 : , ,'4; ' t 1178 Mass. 527 NORTH EASTERN REPORTER, 2d SERIES ' ' s i,il, irs 't'' fi � ' $�,����� + 1 viticulture ... except that all such activi- such animals in the regular course of busi- ; ^; a ties may be limited to parcels of more than ness; or when primarily and directly used k ;0.,' .'p fi five acres in areas not zoned for agricul- in a related manner which is incidental �` -': n1 ture, horticulture, floriculture, or viticul- thereto and represents a customary and ", `i' ARM ture" (emphasis supplied). The defendants necessary use in raising such animals and , ' '`a Y argue that the operation carried out by the preparing them or the products derived x ' ; :r`5' t, Steeges on the premises, which are located therefrom for market" (emphasis supplied). 4 w ` ; ;+ in a residential zone,is not agriculture, and General Laws c. 61A, § 3, inserted by St. ';4,' 4. is therefore subject to the zoning by-law. 1973, c. 1118, § 1, reads: "Land not less t.t' h 1 The analysis used in Building Inspector than five acres in area shall be deemed to `t of Mansfield v. Curvin, 22 Mass.App.Ct. be actively devoted to agricultural or f,fi za �, +'. 401• , 494 N.E.2d 42 (1986), is also useful .1,72horticultural uses when the gross sales - k,` 4a',;b; here. The term "agriculture" is not de- of agricultural,horticultural or agricultural k Ak ° ,1 fined in the statute.. "When a statute does and horticultural products resulting from �`"v" , � . not define its words we give them their such uses ... total note less than five hun- 7a �r��. usual and accepted meanings, as long as dred dollars per year. Here, there was live • ,, ,,'' these meanings are consistent with the evidence, and the judge specifically found, "} a� .x �a statutory purpose. We derive the words' that the annual $500 minimum for sales `' *a ,''+ �Ytt had been exceeded bythe Steeges: „,, . rb ;l s : usual and accepted meanings from sources g ` " E W4t presumably known to the statute's en- rTh re e'was.evidence-that as part of their ' '' ;i1 Fr'? actors, such as their use in other legal farm operation, the Steeges'purchased' } i�,0i contexts and dictionary definitions." Id. at `younghor`s es;raised and then proceeded to a ;' 402, 494 N.E.2d 42 (citations omitted). In selfthefit45 The saleability of a particular ';° i t> , that regard,Webster's Third New Intl. Dic- horse depended on whether it could be rid= t0}a_ tionary (1971) at page 44 defines "agricul 'den, particularly by young children. As ' ' ` ta"4. ture" as "the science or art of cultivatingtart of their training, the.horses would be K.,„'.,.:',a ^ �����g�� P � g . . x a ;nr: the soil, harvesting crops, and raising live- ridden bystudenta in order that they might x, . �,v. ,, 0 4 i stock. "Livestock," in turn, is defined as °become accustomed to handling by inexpe- it .. 1 ,,i.0, '�a ,t + - - l s ,,�, animals of any kind kept or raised for use rienced riders ;The'Steeges had sold an a ` 3 or pleasure. Id. at 1324. average of ten horses a year in the past' ' ; ?4 `, "We look also to the use and definition of `few years ' 1 1'{b : i:?yx the word 'agriculture' in other legislation In viewTof the-evidence and the expan- : , ax 4"S, iv because '[sjound principles of statutory sivedefmitions"of"agriculture"in the stat= s 4ar :f I. construction dictate that interpretation of utes the judge ruled that "the plaintiffs' ,,: • 4, , , '�fiprovisions havingidentical language be Fi, ,r{ , purchase and"'raising of horses, their sta w', s 1 .r i uniform.'" Building Inspector of Mans- blmg,trai•nmg through the operation of the ti � 'd 1 - field v. Curvin, 22 Mass.App.Ct. at 403, ''ndmg-'school,' and' their "participation in ,, � �) wlt ; 494 N.E.2d 42, quoting from Webster v. horse-shows are all'part of the one whole L.., 's5�x�,1'^ , Board of Appeals of Reading, 349 Mass. and constitute agriculture as that phrase is 1r ,ft ;1f if , 17, 19, 206 N.E.2d 92 (1965). See Corn- used u c 40A, § 3 There was no error. a : monwealth v. Baker, 368 Mass. 58, 69, 330 Th'e-judge's interpretation gives the word ' �' :Y• N.E.2d 794 1975. 2A Sands, Sutherland "agriculture"4' t1i ( ) found in G.L.c.40A, § 3, "its i� , 't Statutory Construction § 51.02 (4th ed. plain and ordinary meaning and its consist- r t� ' 4 1984). General Laws c. 61A, § 1, inserted ent and well-established ... definition in ►v` . t $j, by St.1973,c. 1118, § 1,which concerns the other statutory contexts...." Building ;, assessment and taxation of agricultural Inspector of Mansfield v. Curvin, 22 ?' i t , and horticultural land, states that "[l]and Mass.App.Ct. at 404, 494 N.E.2d 42. -4 , `"`� shall be deemed to be in agricultural use The other issues raised by the defend- ; 7 i: . when primarily and directly used in raising 'A - I ants are without merit. f =:t i x �.: animals, including, but not limited to, dairy cattle, beef cattle, JUDGMENT AFFIRMED. poultry, sheep, swine, rt 1 horses, ponies, mules, goats, bees and fur- s P j; ' 1: bearing animals, for the purpose of selling o E KEY NUMBER SYSTEM " 44 such animals or a product derived from T , :li a r . ;,C 'ram ,� '^ ta r .+ IxL -�':E i f 1k'� 'F `�.' ar PM 1.1`li' T r t fir' A ,, a ,r ' ; fi - ax a � i ,,. „,,,, ,., " , t` .., .` r Y.3' !� i�`2 �ys t,, b �.N � y � w'hd;Nw4,:irke s1:4'F3-a - ! 5 .I' 5 4 hY r1 x'g. fi 1 {1,.. i'' 1S h':`' ..ri i-. d ,,t`� N Rr,KJ 7 4"�',L k S .i. ,k Y� 'i\ < ..�)..'. �'� ,^` i"a '#. �AT: i 2.G; ..' 'f� �fia: �P.: A ¢dlq yCia, N '§.7r ',tv. >, .'R f,4. 01 `9� �- r�"riri,: ".kiii.res` '1y i1 4 -. ! '� .1,' °1: r J� 1 ' " `� }91' rt' �•� r<3 h,a.A` '�,�.,".r44,. - '� :'T„. ,'''2' r 'Rv#„_ r�i :'IL,`."d v.�d t:i' ti"d.', �' °0, �'...t '[i �...6: o. *'0 1 , , f� y.� ,�, 4', ?rs �'r �" i �JY , h �" � t� r �,A'r Y y � brr�,^ 5 ;N { n e,t+i '`, r �� r ": t ft 1 H r x r.:,t 1 I' r O 'x` </`5' u g v sx' G =`'w t a 3r bar^ f ^v i�' .V +t t, n�5 r H 1: #s 'Si ��,. a t r k r �.'�.�ti w � 1F � {{ 1 R < \pi y 3 i 3 1L,-„, _ ° 's - fid nW{ » .1'0."C - "1. ? �h a A 4a , -: 6! , 1 1$" S Y /, k"# S3 IR *,T ,' 1 • 1 A ,-r t t,,-';4„..„-,4,� F• .FA 1 4 ,. < 1 .,rd 1 J ,,J rSA 4 t r u. a.,5 1„..!4 T t 34 '- I i5 '' a . tst ' sr } ir: 5 �`�` �. � 3 I ..1 r .# h �7 r K "*it L a Cy 'P�� f a i A s� P fa� � . r Q,.di� ,r S + ,P':"I, jti ,t w--x (x •' St • k • t1b`�s ' '''` dz+rr '1; .i. '_'t ', 44 tr,r ,'E , sa 4.W v F f yyl�_, ,+1; k h t y » fir}•rt.:, , _.,r•�r rc a$'....'.._,..i.:_ ...,.:o: +.. ..3!_ ',ii�i 'i,.... . ,YL^,:A'0 '' .. . gad t , z yt COM'R OF CODE, ETC. v. WORCESTER DYNAMY, INC. Mass. 1151 " �' f , ,, t, '..,'• ::•; -,?clo Cite as,Mass.App.,413 N.E.2d 1151 . ' gy—a strategy which successfully produced motion for new trial), and Commonwealth ,, s A,w,�V 6 Mass.App. d 382 N.E.2d 743 . V acquittals on three of the four charges. v. Gallo, — *u ,; ,�'� "When the arguably reasoned tactical or (1978) (third motion for new trial). I, `3 n� r ",° :" �, ; .x strategic judgments of a lawyer are called Order denying fourth motion for new tri- Y, '; , f*')t• , . into question, we do not'second guess corn- al affirmed. t r + y petent lawyers working hard for defend- ' ,a 44 .. ants who turn on them when the jury hap- It r 3� �'+„ €u � '" pen to find their clients guilty.'" Common- W ., d ,.J p a ' n b o SKEYNUMBERSYSTEM � '. '1',£ t wealth v. Rondeau, — Mass. —, — , T I � ' rK t' r� 392 N.E.2d 1001 (1979), quoting from Com- r II i 1 ;j I i ,.p3 mon wealth v. Stone,366 Mass. 506, 517,320 ra i ` ,+ ',rt su i` N.E.2d 888 (1974). , . [2] 2. There was ample evidence to COMMISSIONER OF CODE INSPEC- 4 ,x r { ,$d_'" ,> Iz �r support the judge's conclusion that "[t]he TION OF WORCESTER. l tO,C f �,1 '',• �-.. 4 failure to present defense witnesses [one v. r� ' Faraci and one Marcella] was a trial tactic WORCESTER DYNAMY, INC. I , ` , „ . n which was warranted in all the circum- j'` z t'�,, G stances." Moreover, the earlier motion Appeals Court of Massachusetts, 11-,..4;"< ,,,,,A.4. a3' judge's ruling concerning Faraci's"demean- Worcester. t .� a" , , or" and his"vague, inconclusive and indeci Argued Nov. 6, 1980. '�( C�f . sive . ... manner of testifying" provides ad- t 4i rs' £• M' r ditional support for the instant judge's find- Decided Dec. 29, 1980. ¢ F; N"e, t• -,,,v '' r. 1' ing that their testimony"would have added ' dx ' `r`k s little or nothing to the case and would not City commissioner of code inspection 1 A r,,f.,'s'< "<. ' 3 ' have varied the outcome." '; ' brought action seeking to enjoin operation. , A ` • ,z �s, '„i [3] 3. We agree with the judge's find- of off—campus dormitory. The Superior i' � fir, - �n-4- a ` , ing that the "defendant was competently Court, Worcester County, Meagher, J., en- s '4 ,'�'r ,.e' '� and effectively represented at his trial and tered judgment, and. appeal was taken. ,, x t A,r-„ ;, at subsequent post—trial" proceedings. The The Appeals Court, Dreben, J., held that , r ;4 :,„ ',5.„^ 4 judge could properly conclude that an ap- premises used as living quarters for interns "`-' ; y ; peal from the denial of the second (as well. at nonprofit corporation organized exclu- ' �r -A.�• ` '1 as the first) motion for a new trial was sively for educational purposes were not -> ,r, • 'l ,a SI pointless because "[t]here was nothingsub- t ' subject to permit requirement of city zon- i stantial to appeal." ing ordinance. � � ;:, �Y `. ,. ; �, i s� k L 3 e,, 4. Because "[t]here must be a reasona- Reversed and remanded for entry of ', t T Yt ble moment for a judgment to become final new judgment. s Y1 ti ',, • ' .c and a time beyond which further challenges , r must be barred," Reddick v. Common- wealth, supra at —c, 409 N.E.2d 764, we Zoning and Planning (=>384 1 . r' 1 have carefully reviewed the entire record of Premises used as living quarters for R a ; Tr <'{a 's all proceedings (including the trial tran- interns at nonprofit corporation organized ,1' At ` *= "' script). In the circumstances of this case exclusively for educational purposes were we have deemed such a procedure essential not subject to permit requirement of city 1 i' ;�. in order to reduce the possibility of a fifth zoning ordinance. M.G.L.A. c. 40A, § 3. 1 `i { } • °' ,,, motion for a new trial and yet another ' appeal to this court. See two prior appeals: s.9',ae ; ,r Commonwealth v. Gallo, 2 Mass.App. 636, James H. Barnhill,Worcester,for defend- I ', F� ;- 'f,, L- 318 N.E.2d 187 (1974) (conviction and first ant. x'�` a 4',w b. Mass.Adv.Sh.(1979) 1668, 1674. d. Mass.App.Ct.Adv.Sh.(1978) 1054. '' s k` c. Mass.Adv.Sh.(1980) at 1964. �' lira'`' _l .:.-.,". . :. .; ` .. .- ... .;_ t'*'�vS yF�r,c i- v vF f �'" 4r''� .-mofi a 1 a1 is 'T ,i',.`.o, ,� S.'F a R,� 3 „ d;-.: •tor `: x t4Fy . ': r`;- ':#ut.SaJwr:w:Ys:-a. .c4+4..e.r1a F w.w .+ t v' dr C. '2 �� xH' S,r rh '4: 2- ,'. ', f• r i 'Y -4 ar'� '� .`„+ E -k „ , to i a ,/'1 -1 5. „ j a.'. � � !" i r. � S x �'1`� w� t i �''f `, t -��y- , rt?''� ya pile �:� t!y i r' ..� v.�N� # , t.:4;,VWi,44,7,^,,� 'ikror r. 'b04,,kp�r�F ',F s ;"4";�S - �a M "e'`E, tC „ :.+'r $ , `4 ,4' & e ,, ,; k k �rk47^,a 4a f ',, ''w'`1: 5I r'F ' (M^-, 4 yaks ak," .Y 4 r fi ' ", 7d...• a �x,,F'� W y{. .yl,# r.3 }, ` 6�'.� -. :#is ry1 'f:.. e y f� 7',ai,.. ':�f 7 ,' . t ��`Y2ylb 9:- .z--it.,:i�. 'S.a 7 Y Y �St t. i, _f l f':z f "c �. 3 F 'x } i�i , e- ,- 4 3r'. - • �..,, { '. }5 ..,� ,+ -vtt+ <v x ,.vr.m b' 2 �,^r3:.�yr �1,M:w ii:g°r� '+r`�'_-,Y` y5�• 6'' id y ;3;; 23i?�°7} =n:'i h .�,� 'rr d` {' t� +��+T� �S 1 # C" �"+"�j �: 3 �' t �Tt y�•� tl :-�+�'j� '�y G t �t r�' ipe5 �a, $, V ' 0.h �..,. 4?' S. t,�•r ' ,^,y it ,1�,.�f ? ia ,, 9 p'1 i.g h� '"r 4 rf, ,.. t 7� ryas a 'i,1„!"�'�'r[ ,r2 S h q ..s r �. `ir+n¢+w ,� .� h Y l, f cy { 4+{, z ;,, - i I d t w a +Fx i ' i , r<� t t.. . k z r 'I rFt .N ':9} , ^ .� 7 P,'Y 41 t'F ' 4.+'4: It'. C J '' 3 !M2 " I� f' y,'7 0.;.� ♦i 1�`` { t i 4 ' .w' rf �' S �„�h fa $� 'x1� I _ 7 �F� { l�� �f" y a�Slr h.A ph,Ya�r f .}T�'.�� i ; . �',i� 4 a Fy' Y � S # '3ik 9 ,i.�; � 3. `� ,M J1 { iL Jo ¢ � 4. 'f • ''' `` S'' Mii ' f !.`t ^M °it .. a Ns R xt � " 1+{ .'� i+� . ,w, xwe+rYY.,��'-. .� ^)" i 'Y:`� ',.SA.(l git 1M1L t. idq + j 9 • ;crry r,!Y 'C 1� •!tf 'k S 24 • {j p+ • ',` t 1152 Mass. 413 NORTH EASTERN REPORTER, 2d SERIES r rxt , r `;,. �4. Bennett S. Gordon, Asst. City Sol., for living quarters for Dynamy interns are not ,, ,, .i 1 plaintiff. subject to the permit requirement of the } F J Worcester zoningordinance. t ' , ¢i' �' Before BROWN, DREBEN and NOLAN, . JJ. The following .are the subsidiary facts q `} found by the judge as supplemented by re' `x 11 it DREBEN, Justice. undisputed testimony and exhibits, see 4'f ' ', The commissioner of code inspection of Western Mass. Elec. Co. v. Sambo's of ' f,' t. the city of Worcester brought this action Mass., Inc., Mass.App. , —b, 398 '+, ' seeking to enjoin Worcester Dynamy, Inc. N.E.2d 729(1979),and cases cited. Dynamy ovi. (Dynamy), from operating an off—campus is a non—profit corporation organized under ' '• , ' tX. •• b'.1,{1. dormitory at 17 Hamden Street in Worces- G.L. c. 180"exclusively for educational pur- * ., 'Yr,Zq'Y' �`;� ter. Under the city's zoning ordinance,a poses." Its primary goal is "to accelerate * 't, •• a ) ' lodging house or dormitory may be operat- the process of maturing in young adults." j�, t r R ` t:, '?f ,c',. ' '� ed in. the residential district in which 17 It offers internships for an academic year S ,f ' ? k;+ ; Hamden Street is located only if a special which provide work experience in the pro- Y . ,t ' ; ; • ' r.,) permit is obtained from the board of ap- fessions, crafts, businesses and other fields. ' ` ' K• 4 *is peals.' Dynamy did not seek or procure Dynamy provides residential living arrange- v, + , r'''', > ! such a permit, A judge of the Superior ments which are "designed to give interns ,. f ,sr,, ;i; r`'' "r� the major responsibility for management"2 1. 1 t 4 Court,after hearing,found that the"use of j P Y g + ' .a• • ,Yir the premises is residential in nature and is The residential portion of the program is • ` ' considered bythe Dynamy director to be ' . t ,•' uh 7 ,,4. x t subject to local zoning use regulation." He Y Y s•,� - t 'a , �; i entered a judgment precluding Dynamy central to its educational goals. Students +? - i• :_ 't ar'r from "operating the premises as living from the Worcester area may,however,live ti, ,f; yr 1. s quarters for its interns so long as it does at home. Dynamy has arrangements with ' ` r; � not hold a [s]pecial [p]ermit." We reverse. a number of educational institutions where-ry Lg i T, i ,' r ; '� ;• :4 General Laws c.40A, §3, as appearing in by its interns are given credit for participa- ++, .,. �, `�, ' - ,' 3> St.. 1975, c. 808, § 3, provides in relevant tion in the program, and high school seniors a,. : ' ';',+f litx• � 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 . •R c 4,1' ; senior year. 2 t,s use of land or structures . . . for education- ,)A,• x', yv; . al purposes on land owned or leased . . . by Although the trial judge concluded that } ,h a nonprofit educational corporation." For the use of the premises is "residential in < '' a 3i bps. t . - ; a the history of this statute see The Bible nature" and "subject to local zoning use ` �4` , 1'. �' z`.i Speaks v. Board of Appeals of Lenox, regulation", we reject that conclusion. "If • f ' " ' `. Mass.App. —, — n.10 a, 391 N.E.2d 279 the judge's characterization of the [use as a ',,-,Y rt` (1979). In the circumstances of this case, residential use] is a conclusion that, as a ,i r ' j we hold that the premises which are used as matter of law, the proposed use [is] not y 1. Worcester Zoning Ordinance§ 15A(4)(1963). ter at an earlier age than usual through partici- ax pating in a guided program of intense experi- ,',. , a- Mass.App.Ct.Adv.Sh. (1979) 1362, 1370 n.10. <y i -, ence and thoughtful reflection." l b. Mass.App.Ct.Adv.Sh. (1979) 2453, 2455. In describing residential living, the catalogue ;? , " tY,x +-• e`, j states: "Each group of interns in an apartment ,,xr •,'1 2. Dynamy's catalogue includes the following decides on budgeting, purchase, and prepara- tm' x., statements: "Today's society spends tremen- th�; ]- h dous time and energy on developing intellect other cooperativef food. The tigrvup may also decide on r r t . other activities such as sponsoring k 't through academic work, but too little time in a guest speaker at their apartment or arranging h developing character as well as intellect +' ` L', + ' ,' a through nonacademic means such as experi- for a dinner exchange with other interns,staff, tF " mental learning.... The youngneed direct trustees,or sponsors. Through living together, • ,.. 1 1 interns are able to develop a mutually support- theass stancerong in finding methods and developing ive environment in which they can learn from y ,:, ii., the strength necessary to become actively par- ti tici atin contributingadults.... Dynamy each other by sharing their day—to—day experi- 1 ,: P g. i<k t•1 seeks to help young people ... in order that ences." x ' i,.,H 0they might build personal strength and charac- a i f : �`{.l_ }Y �{ ,�4 Y S a 5gA ga Syys�,� .. ; t 'l'4;',4 4 . ` '+1j4 .t b} 4 fiY,,� ."J$41 1'�i y_g'.f k 5v,}5 .t. } , �f',,,q rj 1:� aka,.: „ R,,, ,v, ,,,,,A:,,,,..,,- gF ,„ 4^ ,, '. + .�hn x� rt 4 't, ,t ms t•f� • ��' Yf,1 xFX w• i >w•. k 0,k ri#'' , r r!a f,'a�� r,. �''�, ' � ,= r� R: � �, � �^� ��, 9 �' �� - a..� dr •s � 4,. ;�.,,� rya''. a:t 4 .r�;.,r,#,. t.�•s't t .� f ��` � f.w'ix � .: �r. s`.:f'ci #' 4� i'. rik' t�r,� E 1. '. �°4 v4.:.�: '�' '` « gyp.. n`yjt�,�,..V• ST, � i {SY r '" z.'rs ,i �.,13-3i T.y,-.is gq ask,, y= # ..'x t,"S, 'r t, ' d. Sr.•fr ?�•,`S4-k.,. ;'.:. i.' „'',,3 v; 3' t •:r ,` {„y ,�.' # ,' ,Ms"3.§,t i @� 3 ? a/,msfr t) T a ' sa ��y;w> yr .-•r3� �F aS!.� di »r^. S.,.v':C4 .d.S.y t ,1 .1 to`t ,+ .Kit . J t, s '..r' ' s % :s $s 'r 4Y'- 7: x�f r Y 3;`-� 3W '��� 2 rat�,n+�. aj �yx �v --> �d;v t. U r `r r r iurt'+y��'S� s~ fs� �" J y�� `�' 4� �" �+l€'•.i `.� t � '♦ x '� t � iA�J t d � 't �, � s f � l t �`L�. 34� ! t`... .�•F� a, i� ' t ,t, .. ,- r l,,, ty t " ,3, -L k �d t' ,� i t a ,, 1 `�^el�'}. Z ,, t;,,,fl #'+. ,,, - t ,g yy }.J C� »rt tf y .:y r , t . m t .k•t t .,`1. 7 1j��N a y i10. ,' f t�.?<d o.aia�< !C z f 3 k i ,f :5..1..:c. ,...1.:„..,., K ,.n�.aNa ,>;.:.:.. �.r1.a�+,s'�«:��+.t' t 'fir >> t ,, "'a y _ y F.�R t VAk Yi s r It�''''d •YTyyS'.� ii COM'R OF CODE, ETC. v. WORCESTER DYNAMY, INC. Mass. 1153 tf', , ', "_ ?;: ,," Cite as,Mass.App.,413 N.E.2d 1151 `educational; it must be reversed as an er- yard College v. Cambridge, 175 Mass. 145, t�5 ,-: � ' 1. ror of law[citation omitted]. To the extent 146, 55 N.E. 844 (1900) (tax case). Yale kt {d that it is a finding of fact, it must be set Univ. v. New Haven, 71 Conn. 316, 327, 42 Iti A� " a rro d �?•; aside as 'clearly erroneous' [citations omit- A. 87 (1899) (tax case). See Trustees of ' }+l,a,"1' ted]." Fitchburg Housing Authy. v. Board Phillips Academy v. Andover, 175 Mass. at *1,� ,'' d 4 ' i. 1: of Zoning Appeals of Fitchburg, — Mass. 125, 55 N.E. 841 (tax case). See also Trus- ', �A f_,f • r; —, — 406 N.E.2d 1006 (1980). The tees of Wesleyan Academy v. Wilbraham, ! ,°, < -"- +w '71 fact that interns reside at the facility"does 99 Mass. 599, 604 (1868) (tax case); Rad- d.J as not negate its educational purpose." Ibid. cliffe College v. Cambridge, 350 Mass. 613, 3 a x1 "'°• C' Education has been long recognized in 618, 215 N.E.2d 1892 (1966) (zoning case). tF n t the courts of this Commonwealth as a See generally, Annot. 64 A.L.R.3d 1087 ,..41 F t ,K,a p ,. �{ ,'` "broad and comprehensive term". Fitch- (1975). This tradition is significant in inter- I '^ '';' 3r,4 yt5,' l a'i y rTA� burg Housing Authy. v. Board of Zoning preting the term "educational purposes" in 'r ii4 ,, 4t " l4,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 r - , 335 Mass. 486, 492-493, mon Boys'School v. Gill, 145 Mass. 139, 146, Accounting, Inc., ,, P�� .�., tti f,, ..,�,c 13 N.E. 354 (1887). The Bible Speaks v. 140 N.E.2d 470 [1957]), and we note that `�`• r. ;A „ ,.;. , Board of Appeals of Lenox, — Mass.App. where the Legislature has intended to per- .,i 01`.,, k. at ---e, 391 N.E.2d 279. Dynamy's mit a city to restrict the use of land or ' '1 ` » s °;. f �-.- program, including its residential compo- structures for educational purposes, it has 1 1 1 s 4 nent, see note 2 supra, falls clearly within done so with specificity. See,e.g.,St. 1979, ' t t ¢, the definition of education accepted in c. 565, § 1. 1 r f�6,r• ,� ' s ` .r Mount Hermon and approved in Fitchburg, The Legislature did not intend to enable ' l •114t •' a;-r�• fz' . ,; a cityor town to "exercise itspreference" 7-0' ''tr; ,x,,. • namely, "the process of developing andads �: �� a � �3�1 d training the powers and capabilities of hu- as to what kind of educational uses "it will ,f `7> n` k E, ,la�, man beings" and preparing persons "for welcome," The Bible Speaks,supra at—— L;�'{t F� ;kt activity and usefulness in life", Mount Her- t, 391 N.E.2d 279, or "to impose special ?'T !-,t t.` � •� )r;` mon, 145 Mass. at 146, 13 N.E. 354. See requirements . . . on legitimate edu- 1 ti, "( W `h m w, permiteq ;i {t74k; - ixt'iy' :r also Harbor Schools, Inc. v. Board of Ap- cational uses which have been expressly au- 1 s. 1 peals of Haverhill,5 Mass.App.600,605,366 thorized to exist as of right in any zone. •r r o ' Ya" ^ . N.E.2d 764 (1977). Those in charge of Dy- Ibid. h 4- `t`g ..-0' namy consider the residential aspect of its ,.` ; s� dr�, The judgment is reversed, and the case is r � � 1 � s rt z r4 < ' program central to its educational goals, r ,, ,A , k .i ; and although such views are not conclusive, remanded to the Superior Court for the , t `v.'-;';;1-.- they entry of a new judgment dismissing the x L '� are entitled to due weight. Trustees ,j s �' �'��; ����' ;��="'i3 plaintiff's action. k 6 _'v' of Phillips Academy v. Andover, 175 Mass. ,, ,i4 t t 1 118, 124-125, 55 N.E. 841 (1900); Emerson So ordered. '` _ nv'm v. Trustees of Milton Academy, 185 Mass. �, # > , ; ,_'k't 414, 415, 70 N.E. 442 (1904). ` ' 1 f' ')..', ,' W l J Yi 1 4 ' Sk' 4 Moreover, such views are consistent with o SREYNUMBEASYSTEM v:: 1 _° rt ter, . 4 }, F ¢}kj the English and American tradition of high- T "' 11- x>3,i1° ti er education, where residential living is , R 4 ,r = r„ ' ,„ deemed an integral part of the learning experience. President and Fellows of Har- R f al,,7 rr „ c. Mass.Adv.Sh. (1980) 1465, 1469. e. Mass.App.Ct.Adv.Sh. (1979) at 1373-1374. ,, +y. ,- d. Mass.Adv.Sh. (1980) at 1470-1471. f. Mass.App.Ct.Adv.Sh. (1979)at 1376-1377. -;rt ' r"x �3{1 8d + yet r r T A - " . : 4 � n a 'rgt 413 N.E2d-25k.k P :7.t t 2 ai„6,ttt4 y. Y i rKd .,z ;s itl ..'•z tl,R 4 ,' M" • r .1 Yi: .,.r. f3f 41,t '. 'W 71 w..+a 'a r 4 r .. i:.� =r 7. �l. w i tr, at;' .�ra�... Tv c �,,'^) 11 �.Y',� ��3 f�"?,2 ?i,T,.i s 6 qlrMass. 641 NORTH EASTERN REPORTER, 2d SERIES '4:1:1Y1:: r 1334 .. C3. Zoning and Planning 0=,279 4> P 418 Mass. 841 Proposed excavation of 300,000 to 4 .'. JjKathleen B. HENRY 000 cubic yards of gravel over period of three years from five acres of a 39—acre plot cias �4r� v' not"incidental"to agricultural or horticul' ? q• ' ` BOARD OF APPEALS al use of land within statute providing that fie ; ' ifil OF DUNSTABLE. zoning ordinance shall unreasonably regulate 1 , . or require special permit for use of land for #.l : Supreme Judicial Court of Massachusetts, primary purpose of agriculture or hortieUl. 4 Middlesex. 1 ture, and thus removal was subject to local �`° d zoning by-law prohibiting commercial earth_ Argued Sept. 9 1994. ,% i removal, even though landowner sought the c Decided Nov. 16, 1994. gravel removal to remove steep grade of the • y land in order to allow safe access to"cut your own" Christmas tree operation involving an. • `- A Town Board of Appeals denied landown- nual crop of 700 to 1,000 Christmas trees. qt-A 1 1 er's application for permit to remove 300,000 M.G.L.A.c.40A, § 3; Dunstable,Mass.,Zon- , ,t to 400,000 cubic yards of gravel from steep ing.By-Law § 15. grade on property to provide safer access to See publication Words and Phrases 4 "cut your own" Christmas tree operation. for other judicial constructions and def- 4 .., ; f:, The Superior Court, Middlesex County, Rob- initions. _ - ji ert H. Bohn, Jr., J., entered judgment for -e 's 4. Zoning and Planning a301 landowner, and the Appeals Court, 36 Mass. ::::,• ,,A: App.Ct. 54, 627 N.E.2d 484, affirmed. On Uses which are incidental to permissible ' '''4" activityon zoned property are permitted as '��+� ; application for further appellate review, the P P Y 0,,,,,I" Supreme Judicial Court, Abrams, J., held long as incidental use does not undercut plain that the proposed gravel removal would not intent of zoning by-law, and word "inciden- tbe"incidental"to agricultural or horticultural tal" in zoning by-laws or ordinances incorpo- � q' _ 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 °;Y s hibiting commercial earth removal. subordinate and minor in significance; and r there must be reasonable relationship with Reversed and remanded. ,'�`• the primary use, such that the incidental useNb is attendant or concomitant. r11 ry'xg' 1. Statutes c=188 5. Zoning and Planning «301 • t } When statute does not define terms, Determining whether activity is inciden- '47 court looks to the plain meaning of those tal to permissible activity on zoned property r N terms. is fact-dependent inquiry, which both corn- 3 pares net effect of the incidental use to that 2. Zoning and Planning <�279 :t� of the primary use and evaluates the reason- py� Planting of evergreen trees for either ableness of the relationship between the hid- , _tl M 2 ; saw cut operation or "cut your own" Christ- dental and permissible primary uses, and s, . 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' ute providing that no zoning ordinance shall intent or other business activities. k ,Y unreasonably regulate or require special per- ,;{;:` mit for use of land for primary purpose of 1 agriculture or horticulture. M.G.L.A. c.40A, Robert J. Sherer, Boston (Francis A. Di- � ` § 3 Luna with him) for plaintiff. 4,0`` See publication Words and Phrases for other judicial constructions and def- Richard W. Larkin Town Counsel, for de initions. fendant. r • a' ,. y s = w f S 4 • , • . • t Y i ~ £K'',b'4 ' - a n. i A 3--t.e - r t ,,ry „ , „ i)�` fL qt, may t ` +r^ q; ,,7i 72�"'� "sT * x _ A ep t '.k'1JR 1 T1 V 9 7 ;L ti s, , , ' HENRY v. BOARD OF APPEALS OF DUNSTABLE Mass. 1335 ' ` '.� . ",,` h 'r,. ;u x I •1+ ' s a f. Cite as 641 N.E.2d 1334 (Mass. 1994) t rg €, x A s. Tara Zedeh, Sp.Asst.Atty. Gen.,for Dept. leen B. Henry owns thirty-nine acres of land t' ,>, "`• k ' Food. and Agriculture, amicus curiae, sub- on High Street in Dunstable, a rural area r:°� ti , :- `putted a brief. classified as an R-1 residential district. The ;' f 711 i'l ' plaintiffs plot is forest land within the mean- ' 1 j3 41 F� : , _ ` ' ,;•-,,,,,,-„,„,-;?, ,'`q'Before LIACOS, C.J., and WILKINS, ing of G.L. c. 61 (1992 ed.), and has been . .l u °A, ?"? " r�. ;RAMS, NOLAN and LYNCH, JJ. under a G.L. c. 61 forestrymanagementplan. i a c. -� r7 g ti fi - r .;5, • � a for over ten years. ' a i*t 1V? - r ' '*ABRAMS, Justice. ;� , .„ ' ! , r4�'`i4- ,5 ,ii, , , y • r. r;We granted the defendant board's applica- For the past several years,the plaintiff has k. b t y a._irt{t ,. 4 k 3 `jn for further appellate review to consider used a portion of this property to cultivate j •F, ,.. , xbegin , L kt..' s •3 Y T, claim that the excavation and removal of 1,000 trees to restore the forest and to {• _{; $''' 000 to 400,000 cubic yards of gravel from a Christmas tree farm. After consulting ex- I , • a• hilly five-acre portion of the plaintiffs thir- perts,,3the plaintiff realized that a "cut ° r 4 x ; nine acre plot is not incidental to an agri- your own" Christmas tree farm would be ` . .ct•t j t, " k=`4'cultural or horticu�tural342 use of the land and much more profitable than a saw log opera- ia{ ; 4"` cF M therefore is subject to the local zoning by-law ton. During winter, neither mechanized _K tf o P3 per , prohibiting commercial earth removal. See farming equipment nor customers of a "cut : l; '', P.'"';,,‘,. ." �,.rk." ' ;: $,- '• generally § 15 of the zoning by-law of the your own" operation would be able safely to Ix')."s x fi • town of Dunstable. have access to the proposed five acre areas: H unless the steepgrade of the land,created ' r ' .�,z s ;t��R The plaintiffs property is in an R-1 resi- by � a �� �"� - �,. i re sdential district within the town of Dunstable. an esker, is leveled by removing 300,000 to ]G VFR ��` • '°-' 400 000 cubicyards of gravel. s. - ,Y • 'tr t In an R-1 district an owner may remove or ii-' 4, '� , �.transfer earth within the property bound- To realize her contemplated "cut your 'a,,. sr• • aries. However, Dunstable's zoning by-law ' .4'Y`"+� tr° �� ,,� own" tree farm, the plaintiff planned to hire � ��,��,� :',, prohibits commercial earth removal in an R— a contractor to remove 100,000 cubic yards of , -"tr4 "_ 1 district as of right. The plaintiff applied to i • �, t., V �h'' fa gravel annually until the necessary gravel the Dunstable board of selectmen (select- .$ ,0,1, '' N,� ;.. was removed (at least three to four years). — s ��.�;�_h .,.? � ,� ' men) for a special permit. The selectmen — t ' .has, f The contractor would sell the gravel at the s ,t f i , denied the plaintiffs application. '� t , ,,7 market rate, currently one dollar per cubic t g i- �s r • „v z ;• ,The board denied the permit on the yard, and share any profits with the plaintiff, • a ,1 , ,,s `n ground that the removal operation would be which she planned to invest in startup costs k ' f4o : . "injurious, noxious or offensive to the neigh- of the "cut your own" operation. Eight t{.2 t . 1 w ,boyhood" within the meaning of the applica- years after completion of the excavation and . �°�� 1' ,, ,r ble by-law. The plaintiff appealed to the planting a sustainable annual crop of 700 to s t. r Fi q • ` ': Superior Court on the parties' stipulation of 1,000 Christmas trees is expected,which cur- 1, ',;, �' �3 • facts. A Superior Court judge determined rently would sell for thirty dollars a tree. e; '4- >+ - ,• that the proposed use was exempt from regu- CMS it�� '' ✓ ' ration by the Dunstable zoning by-law,under 2] II. Incidental use. Because § 3 ; td'a 41 CO ktl k ' 5f1.G.L. c. 40A, § 3 (1992 ed),' as incidental to of the Zoning Act, G.L. c. 40A (1992 ed.), \ -g,1 to • -' x'" *-;, an agricultural use, and that the plaintiff does not define "agriculture" or "horticul- ,1<, ii, 3-: ` couldproceed with the earth removal opera- x i`ff �� " ,.�, I p ture," we look to the plain meaning of those is bon. The Appeals Court affirmed. Henry v. terms in deciding whether the plaintiffs ac ' tea' ' . a . :Board ofAppeals ofDunstable, 36 Mass.A 4-,` �qn-' p? pp• tivity is agricultural. See, e.g., Building In- ,���� ' ryCt 54, 627 N.E.2d 484 (1994). We allowed spector of Peabody v. Northeast Nursery, f 1 -� ' + -", the board's application for further appellate " ` �, ,, /_ pp pp Inc., 418 Mass. 401, 405, 636 N.E.2d 269 :t ' 3ti ' review. We reverse the judgment of the :f -, ' " (1994). The planting of evergreen trees for s � �k r `t- x Superior Court. �4 - either a saw cut operation or a "cut your i 0 . ara, t ,i" I. Facts. We summarize the following own" Christmas tree farm is within the corn- ;? r � • ''r• from the parties' stipulation of facts. Kath- monly understood meaning of agriculture or !,, = z x = t t• General Laws c. 40A, § 3 (1992 ed.), reads in cial permit for the use of land for the primary 13 i . rtv' ` '„ +-' pertinent art: "No zoningordinance or -law purpose of agriculture or horticulture...." 1 ti '.;::"`:::,;-';.:':;:A",-r P Y P rP g 1 ] t �9 ,ta, �.; : shall ... unreasonably regulate or require a spe- 's' , ;:y I y ai s, is `i : .!11 t t f A:,'121‘'•,-iii ' Rol•r 1 ` ,l '+�.}'},, tr ''n,1i. E' J • 4e� .- , � ai r rr '�,a3 3 . 4 ' i`- :• `< 8:'/ , c..,,,F.,,,,,,„, 5 eil '4 h s t, ti .t -4 '7C ' :''' 1 rC f ' i . rr } 2 y 1 4 .f s'r s t i'r" % ti« , 74 r,'N .`e, "�t* 1 y,r,i 'e 7 - 3 ,d i'q;;. t`` e t • 'd v"r. �3 1. r�4 t"f r F — •, is s • , 9 1336 � � ��,,� r, >; Mass. 641 NORTH EASTERN REPORTER, 2d SERIES ,; , �s e i; horticulture. The board does not contend whether an activity is an"incidental'use 4 ,ri a l otherwise. fact-dependent inquiry, �. p q iry, which both coin, F, 1 '�� I [3] The board asserts that the plaintiffs the net effect of the incidental use to that"rd, ` `k4 ? proposed earth removal does not qualify for the primary use and evaluates the ._;` 1" *"N ` 1 : the exemption because it is a major indepen- ableness of the relationship between the`;`~ ' , ( dent commercial quarrying project, separate dental and the permissible primaryt � ;' �'���t q Yi 6'P j � P uses. L� 4 � _ i and apart from any agricultural or horticul- analyzing the plaintiffs proposed earth Y , . i tural use. Two statutory provisions provide va1845 project, the focus is on the ,F' ' ; guidance in interpreting whether the scope of itself and not ... such external consi, Ili; ' the agricultural use exemption fora ations as the property owner's intent or ` . ( p ' pro- P P Y posed evergreen farm includes an initial, er business activities." County of Kendalla '"�' 2 large-scale excavation project. First, G.L. c. Aurora Nat'l Bank Trust No. 1107, 170 ]1V i t`11 128, § 1A (1992 ed.), defines "agriculture" App.3d 212, 218, 120 Ill.Dec. 497, 524 N.E , ' hti and"farming"to include practices by a farm- 262 (1988). ' 4 k ` � a er on a farm incident to or in conjunction ' ' + with the growing and harvestinj4of forest The word "incidental"in zoning bylaws p .s , '.'r products? Second, G.L. c. 61A, § 2 (1992 ordinances incorporates two concepts: .."It 31,' 4._ ed.), defines "horticultural use" to include means that the use must not be the primer !� uses "primarily and directly" related to or use of the property but rather one which is ,, �� "incidental," and "customaryand necessary', subordinate and minor in significance., y d to commercial raisingof nurseryor But `incidental,' when used to define an ae-green- fir:. � house products and ornamental plants and cessory use, must also incorporate the con. w ' .. l shrubs? Thus, the scope of the agricultural cept of reasonable relationship with the prl.'1 - -.y or horticultural use exem tion encompasses mart' use. It is not enough that the use be, P P *' t471' related activities. Because the proposed ex- subordinate; it must also be attendant or # ~.. cavation of 300,000 to 400,000 cubic yards of concomitant. To ignore this latter aspect of`ii,;a� t ' gravel is not primarily agricultural or horti- `incidental'would be to permit any use which 27•;; • 1.1,ti cultural, the issue is whether the proposed is not primary, no matter how unrelated it is k t • } excavation is incidental to the creation of a to the primary use." Harvard v. Maxan4 ?} r t� -- your360 Mass. 432, 438, 275 N.E.2d 347 (1971). Ali "cut own" Christmas tree farm. ' [4,5] Uses which are "incidental" to a quoting Lawrence v. Zoning Bd. of Appeals s t- " of N. Branford, 158 Conn. 509, 512-513, 264 x permissible activity on zoned property are A.2d 552 (1969). ' i permitted as long as the incidental use does , r; 4a: not undercut the plain intent of the zoning The plaintiffs activity meets neither aspect ,r `= by-law. 2 E.C. Yokley, Zoning Law and of an incidental use. The proposed gravel k,, 3 Practice § 8-1 (4th ed. 1978). An accessory removal project is a major undertaking last ry• ek°:{,: or "incidental" use is permitted as "neces- ing three or four years prior to the establish- `� ) �` " kr ;. sary, expected or convenient in conjunction ment of the Christmas tree farm. That pro- i4'_ c. '`; 1 : with the principal use of the land." 6 P.J. ject cannot be said to be minor relative to a s k 44;. Rohan, Zoning and Land Use Controls, proposed agricultural use nor is it minor in § 40A.01, at 40 A-3 (1994). Determiningrelation to the present operation. Nor can ?, M a� 2. Section 1A provides in part: "'Agriculture' the purpose of selling such products in the rep t ~', and 'farming' shall include ... the growing and lar course of business or when primarily and 1-A• harvestingof forest- products upon forest land directly used in raising forest products under a p ., and anypractices, includinganyforestryor `'rep. lumberingoperations, program certified by the state forester to be a , 1 p performed by a farmer, planned program to improve the quantity and who is herebydefined as one engaged in a ricul- s .. g quality of a continuous crop for the purpose Of all• ture or farming as herein defined, or on a farm selling such products in the regular course of ' as an incident to or in conjunction with such x; � farming operations....' i business; or when primarily and directly used m ,� , a related manner which is incidental thereto and ! r ? 3. Section 2 provides: "Land shall represents a customaryand necessaryuse m ,� ` 1e,,... P be deemed i- P =.',a.; .: be in horticultural use when primarily and di- raising such products and preparing them for c?r„., s rectly used in raising ... nursery or greenhouse market." products, and ornamental plants and shrubs for 41),�.: j 4�c y aYtw:. f ' `{ i �w }}; acre k F=1 ± ,r.� :,r;. -..'. *... b .: 4. '•: -.3z s v: '� +ETif " ..e e ..n.. • 1 ... , ..' T _ n•i" 'K, ...... .� �:*aryYi .�C�r y b+- i H. t s, f t .{ `t r !'' M 7 t �.•+1, r T Sl l -C 't7 6 y,.. t [ & ✓ �y , l i ,r Y '•r m .. r k ,i. K 4.t.,"* , k � r.. a t • a K r .� , r, ; F. .. 1 ` �. g , d t '' 't'' 'a rY7' a F '4'''"nn % - . '; ; : a k F :� kt"r 7;tt I� y? 1 v Misr z • 'F 1 t4 nc.z•: ..�. e t ' .:•''; .s "•a s S ' • Zs P Li 1 s t.ea t t c - T . HENRY v. BOARD OF APPEALS OF DUNSTABLE Mass. 1337 ¢," a Y ` ,&�3 6 , Cite as641 N.E.2d 1334 (Mass. 1994) iY r t i' s; `, .•"`alrying activity be said to bear a rea- Id. at 48 & n. 2, 574 N.E.2d 1014, quoting t, , ?y;,?f , e relationship to agricultural use. Webster's Third New Int'l Dictionary 1142 , i t. • ;1 ::; Inspector ofh'� �"f 4 t on v. Building pBrockton, (1971) ("subordinate, nonessential, or attend- tl 4 F .,Mass. 472, 221 N.E.2d 736 (1966) (con- ant in position or significance")and American ' r, t s t:'4`x �, ` -;1 s t ction of new building to operate agricul- Heritage Dictionary 664 (1976) ("[o]ccurring fy • $ './ ` L r". machine on farm in residential district as a fortuitous or minor concomitant inci- ( r�a d E g ' &.,', ' reasonably related to farming activities dental expenses"). Applying this definition a '?�to :" ; 4-thus permitted under zoning ordinance). of incidental use,the court then considered t ? '. a ',4 Ei' ^�' conclude that the net effect of the volume the net effect of the proposed activity on the ''•�;`+y 44. -f2� :` t } l'` h to be removed, the duration of the surrounding area. V,' i"' tt sr ' 1 - ect, and the scope of the removal project q S �`$ 7 , } Yf ,inconsistent with the character of the In our view, the Appeals Court in Old ! ° '� 4 ColonyCouncil, supra, - ._: g and intended agricultural uses. correctly considered h ;ia ,. "e think that the plaintiffs case is gov- the "net effect" that the proposed cranberry r`v`ri`4� t. .r bo would have had in the rural residential ; t ... `'� ed by Old Colony Council—Boy Scouts of g i ^} ?,-ty s 4 t a.t. area and concluded that the effect was so I i b y , �,: t `u Zoning Bd. of Appeals of Plymouth, *i Mass.App.Ct. 46, 574 N.E.2d 1014 (1991). great that the excavation could not be said to a•' u z.) '4 ... .c' Old Colony Council, the Boy Scouts of be incidental (or attendant or minor) to the - s 3 r cranberry bog. Id. at 49, 574 N.E.2d 1014 ; , } f r r; ,s .;erica applied fora permit under a Plym- , r. .f . r th zoning by-law to excavate 460,000 cubic given amount of gravel to be excavated, c j wt ,; r= estimated duration of excavation of project, ,; ' sI# '`k • ds of earth in order to create a crap- p J ` .s and profit to be made from the excavation, ,t 6= .,,�� 1 ', -. bog near a campsite in a Rural Resi- f 4 t .-tial District." Id. at 49, 574 N.E.2d 1014. excavation was not incidental to proposed e tilt, f $ cranberry bog). Interpreting accessory use " , (. , e Plymouth zoning board of appeals de- ! �$] & , 4 provisions to require both that an incidental e r '€ r a. , R ,ed the application on the ground that a q �i� t � :j7 i al permit was required for such an exca use be minor relative to the principal use and 4�7' Tation project. The plaintiff appealed to the that the incidental use have a reasonable or Court which affirmed the denial of relationship to the primary one is essential to t. �s ast r preserve thepower and intent of local zoning \ 3 ' } the permit. The Appeals Court also affirmed g 'r 16 }� .; `. oil the ground that, considering the volume of ar�thorities.�7 Any other construction of the I k ,'i"r.1')• 4 k.Baith to be excavated, the duration of the statute would undermine local zoning by-laws r."4...ict.:-.‘ �.k ,.or ordinances. Applying the same reasoning F � ' , � Asect, and the funds involved, the excava- ,l , t �, *! ; " to this case, consideringthe amount of gravel k+ .i' r t s f>~on was not incidental to the proposed cran- f{-3 x z Av >- ,r to be removed,the duration of the excavation ' ' ' l, bog. Id. (because "the proposal in- K t x} olved the removal of 460,000 cubic yards of and the monies to be realized from the exca- A �`i r , vation the removal of o Ifill over a two and a half year period and an gravel cannot be said c � , � t " `r" to be minor or dependent on the agricultural �=" ,z � F�, "'excavation which would provide substantial ,' a rt M, t ,,' : r tom.. , inds in excess of the cost of constructing the use. $s ? r L bog, the judge was warranted in upholding The magnitude of the plaintiffs mining (1:1 47;. -s`- 3.1he boards's conclusion that the excavation of operation, if permitted, would be "a de facto 'Ili/ i 4, �, ? -}x material was not incidental to the construe- quarry operation to be carried on in violation ni {, s t' ' on and maintenance of a cranberry bog"). of the [Dunstable] zoning [by-law]." County I 1 ti 'w $'" 4 LL'In its reasoning, the Appeals Court stated of Kendall v. Aurora Nat'l Bank Trust No. 1 17 ��x^ ,E-' ythe plain meaning of "incidental" to be 1107, supra 170 Ill.App.3d at 219, 120 Ill.Dec. F .- .,, , '"something minor or of lesser importance." 497, 524 N.E.2d 262. We conclude the spe- f 'l f �t f° 3 '4 � F. ,1:- The Appeals Court cited, 36 Mass.App.Ct. 54, construct pond for irrigation was incidental to `, t,:if`.r L ,(` , ,.if 58, 627 N.E.2d 484 (1994), out-of-State cases in primary agricultural activities). However, in L '. 'iu " ": support of its conclusion. See, e.g., Atwater each of the cited cases, the net effect of the iI ( �: " t,- F r'd" , "Township Trustees v. Demczyk, 72 Ohio App.3d "incidental"use was minor in comparison to the , {i,4 t'�` t` `"' 763,596 N.E.2d 498 (1991)(excavation to create r* T;f 1{ ' ` -1 " lake and track for horses on fifteenyear old primary use, especially because the agricultural �, ,* • t:' ' r, ,. usepredated the excavation. Furthermore, to F i' , r horse farm held incidental to agricultural activi- ; . lis { 's r g the extent that those cases are inconsistent with + �`rrc. tY)' VauGundy v. Lyon County Zoning Bd., 237 the result we reach, we decline to follow them. ' 3 •`a ' ,fig rp . s r Kan. 177,699 P.2d 442(1985)(quarrying rock to cq } t: ,£" t ti.. ,, { r } tt tF i ° ' -cN-r n ' 'i "� a sd 4' , e ?Y .wt, t {z ,. � f4. . . y a " y , r4tt' R f ' q.. sl 4 ' 1338 Mass. 641 NORTH EASTERN REPORTER, 2d SERIES ` s�4z'. ' ' cial permit was properly denied because, self-incrimination by finding that refusal`i.;,— F ,` i tin .' "[t]o hold otherwise would be to allow the deliberate misconduct. x�P`.,,1k W4, 41 = s statutory exemption to be manipulated and V pa� -0. ,, �;' Affirmed. �' x twisted into a protection for virtually any use ay. of the land as long as some agricultural , 't ' s: dt t ' ; activity was maintained on the property. 1. Statutes a270 '116, , F i . i The [town's] zoning power would thus be Absent language mandating re. :, ; • 0 :i °< rendered meaningless. The Legislature can- tive application of amendment,amendedsii, ' at not have intended such a result when it ute should not be applied to conduct ; ' created a protected status for agricultural ring prior to effective date of amen `` 1 i purposes." Id. > -'.r f 3; � 2. Social Security and Public Welf '--.. s (� This matter is remanded to the Superior 0=659.1 , ' i i Court for entry of a judgment affirming the Department of Employment and ., 1' k t .; board's denial of a permit. ing's board of review is sole finder of facts So ordered unemployment compensation case. ;F._ p I„ `� 3. Administrative Law and Proced 1q e { x: w «763 788 :#.r + 5 �`% e r ' O EKEY NUMBER SYSTEM0•t Y,h: T Social Security and Public Welfare 4. <�666 r ' :. k , g, On review of denial of unemployment , 4 .6. m"' compensation benefits, court's function isto£ �� , . < � determine whether review examiner appbed 4:' . •-4 ' . correct legal principles and whether review: v, ,, 418 Mass. 855 g p p ,'� >.; examiner's findings are supported by evil, r -` at55George QUINTAL dence. .M.G.L.A. c. 30A, § 14(7). " v' 4. Social Security and Public Welfare .,r� COMMISSIONER OF the DEPART- a566 ;ta-. T h( fi : MENT OF EMPLOYMENT Employer has burden of proving that ' , AND TRAINING. unemployment compensation claimant should -71 1.,4. , be disqualified for willful misconduct._, +a ,� ;,t , Supreme Judicial Court of Massachusetts, M.G.L.A c. 151A, § 25(e)(2). -; ,',.......re --4'. Bristol. `` 5. Social Security and Public Welfare � Submitted Oct. 3, 1994. «388.5 ... ,' Decided Nov. 16, 1994. Review examiner could deny unemploy a s ment benefits based on claimant's admission 42., "; that he removed employer's property and his Unemployment compensation claimant refusal to tell employer what had become of ,A 4 appealed from judgment of the District property, notwithstanding contention that,as t•`, Court, Bristol County, John H. O'Neil, J., employer discharged claimant for theft of ', 5i affirming decision of Department of Employ- ' company property, he was disqualified from ,' F ' ment and Training denying benefits. The receiving benefits on basis of conduct that r, i '' Supreme Judicial Court transferred case on was not reason for discharge; discharge and y i its own initiative from the Appeals Court. denial arose out of same basic conduct. i The Supreme Judicial Court, Nolan, J., held M.G.L.A. c. 151A, § 25(e)(2). " that (1) claimant's refusal to tell employer ta � what had become of employer's missing bar- 6. Social Security and Public Welfare t. . rels was deliberate misconduct in willful dis- a388.5 ,�� regard of employer's interest disqualifying Claimant's refusal to tell employer what 'k1 t him from receiving benefits, and (2) Depart- had become of missing barrels was deliberate F �, ,,,,; 1 ment did not violate claimant's right against misconduct in willful disregard of employer's i f 3pt��, Jz.j F 4 l h F2 --'• , , -.. 1, � : E4 ' Cb r1.2§ r Ma„-,,,,1,,,,. ,c p ^;k't, .it.;-,i, ; s = s . s ',,,1; s —s�.. k.1n ." . � .. . . tr. - . . , 4, 7 r 7 _ " .)t !J k 4 f to j h ` 4 1.. A} f C.} , 3.}�,:Y.;.{ t ' _.}} .! t 1� f '. .V." + °.,,. i<h. Yas' a{Y,�y1 ty 6 5,, i a. , 4 f p „1 t x�. ',''.:7%.1 t�Y+ y `'" g y. -4`kt av �F.'" ... � SrF.', xS` y0 +C'<m.�'.`11- .a i, .. ''',,.- .:�k, v •k. r� 'a+. Dk `#� .s. °YS ""Grt .:r . r`t ,5 � t { $ '; s;Q'�' MODERN CONTINENTAL v. BLDG. INSPECTOR Mass. 247 : ;+ i " Cite as 674 N.E.2d 247 (Mass.App.Ct. 1997) ) i r ; p Nicola Favorito,Quincy,for defendant. ; 1110, k i?} > > a, #' 42 Mass.App.Ct.901 Joel Lewin (Jeremy Ritzenberg with him), { 4sF2 Y 1MODERN CONTINENTAL Boston,for plaintiff. �� ' = CONSTRUCTION CO., Herbert W. Vaughan, Charles P. Kindre- i 4',f IP, ; 4 t , µ s s� INC. gan, Boston, for Lookout Ridge Improve- s ' `�y al f , r,r -K v ment Association, Inc., amicus curiae, sub }r r $' r r,M)a', mitted a brief. s is ,.is.c1 t fi,� ''q UII,DING INSPECTOR OF NATICK. 'i' ' No. 95-P-437 RESCRIPT. h x d `, �s•� 1 -W ,e;iPu ',.., Appeals Court of Massachusetts. Citing noncompliance with the zoning by- , , law, the building inspector denied the plain- � � • k f , . Jan. 2, 1997. tiffs application for a permit to renovate an i� " +` r A�, existing barn for the purpose of slaughtering ? �{ � � > " ,n�� livestock raised on its premises. The plain 1 , .z4s , .. r, Landowner brought action challenging tiff then brought this action under G.L. c. d � xh ' ding inspector's denial of permit to reno- 240, § 14A, c. 185, § 1(j'h), and c. 231A. On (�' �s r '° t existing barn for slaughtering livestock cross motions for summary judgment, the i i; $ 14A. � „ on the premises. The Land Court Land Court judge concluded and declared * men in favor of landowner. Building inspec- that the plaintiffs slaughtering of livestock r,c , , _�t: aealed. The Appeals Court held that raised on its premises was. agriculture enti- , t a ' `' PP •; • glAughterhouse for butchering animals raised tied to the protection afforded by.G.L. c. Y r t 4 �x-.; Ot► the premises was for agriculture within 40A, §'3.We affirm the judgment. �, `�. { y F 3 }ute aping of statute which prohibits zoning aka ^f ' x 1. The undisputed facts. The plaintiff 'Ordinance or bylaw from prohibiting, unrea- owns the"locus in issue, "Lookout Farm," t�'� a 1" x ,h. gonably regulating, or requiring special per- which it uses for the production and sale of 3 _ � ' ' ^_ nt for use, expansion, or reconstruction of fruit,vegetables,herbs, and livestock, includ ',sr - " ` "`° ,' 'existing structure for primary purpose of ing ostrich, deer, lamb, calves, sheep, goats �r ' culture. '; •' chicken, pheasants, peacock, and rabbits. t • Affirmed. The farm is about 110 to 115 acres and has 1 t ' been in continuous agricultural use for over E as Ott 5 ▪ °.: three hundred years. It is situated in a Zoning and Planning a279 zoning district in which farms for raising, t• , r Slaughterhouse for butchering animals keeping, and selling certain animals are al- ▪ + ; {f r ed on the premises was for "agriculture". lowed as matter of right 1 .� 'I z 'ithin meaning of statute which prohibits •Animals raised on the locus are kept for 4: ,Z. n}f. zoning ordinance or bylaw from prohibiting, breeding purposes, sold live, or sent off u t Y bt F unreasonably regulating, or requiring special premises for slaughter. The meat and poul- Tv ' ^< ti permit for use, expansion, or reconstruction try produced by the slaughter are sold at a ,11 of structure for primary purpose of agricul- farmstand located on the locus, sold at either s ` . fore, even though Department of Public of two restaurants owned by a corporation X. '�� b Health, rather than Department of Agricul- controlled by the plaintiffs, or sold to other s ' ` �tur'e, regulated slaughterhouses, and even meat and poultry retailers. : j h` though slaughtering could become industrial u t or business use when removed from agricul- In March of 1993, the United States De- partment of Agriculture approved the plain- ' I Aural setting. M.G.L.A. c. 40A, § 3, c. 61A, • 4: r 1`.1, c. 94, § 120, c. 111, § 1, c. 128, § 1A. tiffs application to construct a slaughtering „, , ; facility for sheep, goats, rabbits, and poultry t z p x - See publication Words and Phrases .' ' *,3 for other judicial constructions and def- on two floors of an existing barn on the locus. f, ai 1 initions. To put the size of the proposed project in r;:: .i::: Il, g�I Because this dispute was argued and decided discuss the zoning by-law. l Yetunder G.L. c. 40A, § 3, we need not set out or1:. {:. ` r ,': 41' .. { ) 3lM�1�, , F t : � 2Y 5 LL 3 - - .p^ ,,.. . f'•' ;;:'� ; t' x14 +4! y Igs14� j ME_-r� • 4 3" y�J t. t:yY5 i _#.`... '•-� .. >.° .a. .. — .'.:v i, n... .' .. r_ 1:f kr,� .. a, ,.''.. u.".Ai:A t - -•• 71,••,.., ..t •., r -14- •••,• .y .`H'�•.•?� ti.. y , r 248 Mass. 674 NORTH EASTERN REPORTER, 2d SERIES ,7 ..'' Sty context the total of all building square feet Ct. 401, 494 N.E.2d 42 (1986), the Land m on the locus is approximately 50,000, and the Court judge reached the opposite conclusion .' slaughterhouse will occupy about 2,610 See Steege v. Board of Appeals of Stow, 26 ' •; square feet of the total 14,400 square feet in Mass.App.Ct. 970, 527 N.E.2d 1176 (1988) , � ' the barn. Two months after Federal approv- We see no error in the Land Court judge's i` al of the project, the plaintiff applied for a reasoning and adopt it as our own. 'k-d r • building'permit to alter the barn for the Various statutes defining "agriculture" �' v slaughterhouse. The building inspector de (see, e.g., G.L. c. 61A, § 1; G.L. c. 111, § 1, i'; nied the application on the stated basis that a G.L. c. 128, § 1A) as well as dictionaries(see, 4 "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 '*. ?-c : ! viticulture . .. provided that during the raised on the premises is primarily agricul- months of June, July, August, and Septem- tural in purpose. - F.;j i. ; ber othpevery year, the majority of such Our conclusion does not conflict with Lan- products for sale, based on either gross sales gevin v. Superintendent of Pub. Bldgs. of 5' dollars or volume,have been produced by the ` owner of the land on which the facility is Worcester, 5 Mass.App.Ct. 892, 369 N.E.2d r F F 739 (1977). The narrow holding of that case, �,, 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 operation within area not zoned for agriculture, horticulture, the scope of the zoning ordinance which per- " R` floriculture,or viticulture." mitted as of right the "[m]anufacture, assem- It is the position of the building inspector bly, processing, packaging, or other industri- and the amicus curiae that the use of words such as raisin and kee m in respect to � operations" within a particular district, g" pi g" P does not compel the conclusion that the on- animals in the statutory and dictionary deft- site processing or slaughtering of animals '!, nitions of "agriculture" is an indication of a raised on the premises cannot be an agricul- c legislative intent to exclude the slaughtering tural activity. See Deutschmann v. Board of ` n 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, E y' from foreign jurisdictions.' 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 I. in the fact that slaughterhouses are regulat- agricultural setting does not mean that activ- ;` ed b the Department of Public Health, see Y P 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- 94, § 120, rather than the Department of spector of Mansfield v. Curvin, 22 Mass.App. _12,23Agriculture, see G.L. c. 128, is of no rele- 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 0'' i r " : F j '4,51. ; COM. v. WALKER Mass. 249 ! ' `,� ` ( V� ,tt f ' i Cite as 674 N,E,2d 249 (Mass,App,Ct, 1997) �y f �, N9, '4- .to a determination of whether the particular statement to social worker did not -� f. I. " _ "' is beingdone for an agricultural impermissibly restrict defendant's right to i ( a T 4 r�, tering � P Y g � � `' ;ra 'f' rialpose cross-examine complainant. • t ,jf . ,dut urp , i ' ti r � , Affirmed.e record gives no support to the build- 'b.4fq +_. pector's concern that the plaintiff in- f , ;n" r„1•F:to slaughter animals other than those :i i dl t ``'Ifir�`', �. on the locus. The judgment itself 1. Indictment and Information«191(8) 1, 4 A& 7 ', ,,t the permissible scope of that activity to Indecent assault and battery on child �1{l' '11 r0 7 7, Lock raised on the premises. Moreover, under 14 was lesser included offense of t' s't cl.} nditions may be placed on a building charged crime of forcible rape on child under • I. • x �$ '* ; ,x a „•t •to prevent its use for unlawful pur- •16, even though indictments did not name 4 4. �'t' 'J �{ �l s Kicker v. Board of Appeals of Rayn complainants or state their ages to be under 1 I`. `� , } '' '.33 Mass,App,Ct, 111, 115, 596 N,E.2d ='i, a +r (t4 14, where defendant's discovery pleadings 6 5} (1992). showed that it was undisputed before trial R 4. '' �' n V tulgment affirmed, that complainants were under 14, M,G,LA ;ff • l 4 l ' c.265,§§ .13B,22A. ( j T k 0 EKEY NUM BER SYSTEM ( U il- `t' r 2. Indictment and Information '191(.5) �, ;, � 5 t' c . In determining whether one offense is i, j `„� �, ri.11 ' lesser included offense of another, question t ;,i+;V�$-7 42 Mass.App.Ct. 14 that must be answered is whether all ele- )A + ` fi° ', '�'T: '�_F j COMMONWEALTH ments of lesser offense are included within k k greater offense,not vice versa. ill 1,-'''',,, T s'A Gerald WALKER. 3. Indictment and Information«191(.5) .4tf y A Y a, . �F " No. 95—P-450. Doctrine of lesser included offenses "s �, , _ serves public purpose: it allows jury to con- �it ,, Q w r� >* '� `'578 4 Appeals Court of Massachusetts, vict defendant of offense established by evi- 1'& y� y • , j' .` Hampden. dence, rather than forcing it to choose be- `� 4 ' ri, „ ' ,- : 1a� i i tween convicting defendant of offense not ? ' x s, Argued Oct, 15, 1996, W fully established by evidence or acquitting (i' Y 3 i* Decided Jan, 2, 1997. even though defendant is clearly guilty of '; Further Appellate Review Granted some offense. t p ,t Y April 3, 1997. `?t ti� _ a ' 4. Criminal Law a1137(1) ;,' Defendant, who at charge conference it -s vti , ,: tt ..' t t,:Defendant charged with forcible rape on withdrew objection to lesser included offense r ,y,a; , .;, `V'child under 16 was convicted of indecent instruction after trial judge stated that he _ „+ l assault and battery on child under 14 follow- would include the instruction because evi9 E iag jury trial in the Superior Court Depart- dence of penetration was only slight, ac- {it '` .' anent,William H. Welch, J,, and he appealed. quiesced in lesser included offense instruc- S �2s 'k ,w - The Appeals Court, Gillerman, J'., held that: tion, and could not on appeal claim to have L :.Er a` u��,�;. PP � n� �; x a ; '(1)under circumstances, crime for which de- been prejudiced by instruction. i a ' feadant was convicted was lesser included { r offense of charged crime; (2) defendant did 5. Criminal Law«632(5) i` k , { ,: ,t 1not establish the reasonable foundation of Defense counsel's representations that r` rr, ,i-3 prior similar sexual abuse necessary to allow public records in acrimonious custody battle 1 t him to voir dire complainant concerning al- revealed that complainant's mother had al- 1 i u "K leged sexual assault committed on her by her leged that complainant's father sexually as 3 ; A`: ` * y` 't' father• and (3) denying defendant use of so- saulted complainant did not establish the rea- 1( F:' 's ' •- cial worker's report to refresh complainant's sonable foundation of prior similar sexual fg 1 ' f , ;. c'" recollection about whether she had made abuse necessary under Ruffen for defendant T t y , ; .. . _ ., .•_ ' k t 4X,1�rT'c s r r ,, i .S��r.hw t $ ,4''r' 1-1 t I'., , . - .. t K-' y,L r��rsf i,) tine,,,^ ea p.', ''.-. r* ss ° ('r4 d '•r h-. , u r -,,v�i i' tk4i J } M' r a .. 8 8 PEPESKIIAARD LLP LAW OFFICES 150 FEDERAL STREET, 28TH FLOOR BOSTON, MASSACHUSETTS 02110-1745 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. V truly yours, ulie C. Mo Attachment cc: Ruth J. Weil, Esq. Brenda Tri &Victor Cillis, M.D. BOSTON 4-1 HARTFORD 4-1 SOUTHPORT -MAR. 5. 1999 12:43PM DEPT OF FOOD+AGRICUL NO. 7807 P. 1 COMMONWEALTH OF MASSACHUSETTS t _':' �_ EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS __ ':�- DEPARTMENT OF FOOD AND AGRICULTURE -I, ','` 100 CAMBRIDGE ST.. BOSTON. MA 02202 617-727-3000 FAX 727-7235 January 14, 1998 ARGEO PAUL CELLUCCI VIA FACSIMILE TRUDYCOXE Goven►or (978)355-6152 Sccrctary Zoning Board of Appeals JONATHAN L.H ALY Coioner Town of Barre Henry Woods Municipal Building Barre,MA 01005 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, § 1A,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 of protecting and promoting the_ keystone of its founding,agriculture. Post-It'Fax Note 7671 Dab/3 js f,,q _ A ► a�(� , To `,�!. KO I! h V. From/ . 41G 44id kea �toCoJDept Q Phone* °(61D Vag-3o00 02S Fax* (,,7 aa S - q 2SS Fx# — .MAR. 5. 1999 12:44PM DEPT OF FOOD+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 ommissioner JLH/mnt 9 9 10 10 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 NARRATIVE 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 GEOGRAPHY 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 Metropolitan Statistical Area (1993 Definition) Barnstable-Yarmouth Department of Housing and Community Development Argeo Paul Cellucci,Governor,Jane Wallis Gumble,Director GOVERNMENT Municipal Offices 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, Areeo Paul Cellucci,Governor,Jane Wallis Gumble.Director "DEMOGRAPHICS • _ 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 & over 8,285 20.2 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 average 90.4% 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 -HOUSING CHARAC TERISTICS 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) $575 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 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) Cape Cod (09-12) 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 $35,457 Public Schools(Dept.of Education) Barnstable West Barnstable Elem K-05 Centerville Elementary K-05 Cotuit Elementary 03-05 Hyannis Elementary K-05 Hyannis West Elementary K-05 Marstons Mills Elem K-02 Marston Mills East K-05 Osterville Elementary K-03 Osterville Bay Elementary K4-05 Middle School Grade 6 -06 Barnstable Middle 07-08 Barnstable High 09-12 Cape Cod Cape Cod Region Voc Tech 09-12 Colleges and Universities(Higher Education Coordinating Council) Cape Cod Community College For further school district information contact: Information & Outreach Services Department of Education 350 Main Street Malden,MA 02148 Phone: (781) 388-3300 Department of Housing and Community Development, Argeo Paul•Cellucci,Governor.Jane Wallis Gumble,Director -- -,i'Mil ECONOMIC DEVELOPMENT http://www.state.ma.us/dhcd/iprofile/020.htm 3/4/99 DHCD - Community Profiles -Barnstable Page 9 of 20 ECONOMIC BASE Labor Force(1990 US Census) Employed 18, 810 Unemployed 1,467 Unemployment Rate 7.2% statewide 6.7% Industry Groups of Residents(1990 US Census) Agriculture 500 Mining 24 Construction 1,763 Manufacturing 1,766 Transportation & Communication 1,594 Wholesale & Retail Trade 4,765 Finance, Insurance & Real Estate 1,448 Government 814 Services 6, 136 Total 18,810 EMPLOYMENT, PAYROLL & SALES Average Annual Employment by Place of Work(Dept. of Employment&Training 1993) Agriculture 249 Mining C Construction 693 Manufacturing 955 Transportation & Communication 1,159 Wholesale & Retail Trade 7,436 Finance, Insurance & Real Estate 994 Government 2132 Services 7, 880 Total 21521 Total Annual Payroll ($,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 47,780 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 0 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 the 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. Marston Mills Airport, a privately owned public use facility, has 2 turf runways: 1,675' x 45 'and 2,680 x 70. 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 7,500 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 No 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 tw D RE REATION CULTURE AN C 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 • cbserving, 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 ,,L ,,_ MISCELLANEOUS 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 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 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 4 MUNICIPAL 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 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/dhcdliprofile/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 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 1 11 I i I 11 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 10th 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. 61 A, 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 9.71-2, 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 riding 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: Definitions. 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; definitions. "Farming" or "agriculture" shall include fanning 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. 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 is 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. _ TOWN OF BARNSTABLE BUILDING PERMIT APPLICATION - .�t71ap 4 Parcel D-Hi &MN f Permit# „• 9R CO . ealth Division c 'tea--/.? (/ -2) Date Issued — 4. -99 ,onservation Division M4n.cLIA � (/- ; . Fee an-, Th. /Tax Collector T, .i . '$ y,*7 ./Treasurer ( <-5• Li'qq • V 61 Planning Dept. U SEPTIC SYSTEM MU,..)' z.. INSTALLED IN COMPLIANCE: Date Definitive Plan A proved by Planning Board WITH TITLE 5 Historic-OKH Preservation/Hyannis ENVIRONMENTAL CODE AND TOay. .r;9 P4:747,9 rr,%;_, Project Street Address o26S1 f')A,` - 5 r •e' 6 ZL 6 • /Village /Owner,43 r Lr .'i ; /Vd -Cits ' Address Z or I 1;,, S-r • W T f-��� vr: o ,,� %Telephone C5 6 8) 3/oa-1 s co .. . ,ermit Request z . Square feet: 1st floor:existing is i-lbx proposed 2nd floor: existing tifk proposed Total new Estimated Project Cost /.2 a • In) Zoning District Flood Plain Groundwater Overlay Construction Type ' . Lot Size 9K ac s Grandfathered: ❑Yes ❑No If yes, attach supporting documentation. Dwelling Type: Single Family VT:o Family ❑ Multi-Family(#units) Age of Existing Structure 0 Historic House: ❑Yes 0110 On Old King's Highway: files ❑No Basement Type: ull ❑Crawl . ❑Walkout ❑Other • Basement Finished Area(sq.ft.) Basement Unfinished Area(sq.ft) Number of Baths: Full: existing new Half: existing f new Number of Bedrooms: existing ' new Total Room Count(not including baths): existing new First Floor Room Count Heat Type and Fuel: ❑Gas 4170i1 ❑ Electric ❑Other ,= • Central Air: ❑Yes 11 Fireplaces: Existing New Existing wood/coal stove: ❑Yes ii -�= Pool:❑existing ❑new size Barn: ing kgrimite ttac i gara411ki g ❑new size 4 Shed:❑existing' new size Other: Zoning Board of Appeals Authorization ❑ Appeal# Recorded❑ Commercial ❑Yes la'‘ If yes,site plan review# Current Use Proposed Use eitir, i � s1�.� - S/.� l fz� ttors-�.� BUILDER INFORMATION Name STelephone Number • Address - License# • Home Improvement Contractor# Worker's Compensation# . ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO SIGNATURE ^,c.. G� /w DATE - 9P9 FOR OFFICIAL USE ONLY 'f e •! 1 PERMIT NO. i I DATE ISSUED s• • s 1 3 ,_ • r � MAP/PARCEL NO.. , ,A,r1 • ,-. ADDRESS • VILLAGE 4 `1 itr- OWNER a4 7 . i c . ` DATE OF INSPECTION - • FOUNDATION . a.t FRAME /, r s - INSULATION • FIREPLACE " . ' ELECTRICAL: ROUGH _.., rt.. FINAL - • ' PLUMBING: ROUGH 7 FINAL ' (3 `t GAS: ROUGH 0.) r11. '- . FINAL "•y = -= , FINAL BUILDING f-- !— ' ▪ t '-., • • ▪ . .`i r' ' r; ' DATE CLOSED OUT --• '' ``z ASSOCIATION PLAN NO. The Town of arnnstahlie �►axsresr4Mcc-'-) 40 Department of Health Safety and Environmental Services 6as& Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crossen Fax: 508-790-6230 Building Commissioner PLAN REVIEW Owner: , C. LUS Map/Parcel: Z VD 7 O 16 Project Address: 2 i 14 t N) , Builder: OW V1 L The following items were noted on reviewing: • 0 i&L- 16 TPfo 40 2A-LA)ki r- 0\(\,) t YL ilk 'ems t l a 0 S Lwb S9 t�r�1c,�' 3 Please call 508 862-4038 for re-inspection. Inspected by: CZ- PTl w eL✓S Date: —4- _ 79 q:building:forms:review • f Application to • • , .,, �. I` ., Old Kings Highway Regional Historic District Committee51 Fait 8 .a� in the Town of Barnstable for a CERTIFICATE OF APPROPRIATENESS Application is hereby made, id triplicate, for the issuance of a Certificate bf 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: ECK CATEGORIES THAT APPLY: 1. Exterior Building Construction: New Building 0 Addition 0 Alteration . J Indicate type of building: 0 House 0 Garage 0 Commercial 0 Other Fi o2Se. Le.4A/ to 2. Exterior Painting: 0 3. Signs or Billboards: 0 New sign 0 Existing sign 0 Repainting existing sign 4. Structure: 0 Fence 0 Wall ❑ Flagpole 0 Other (Please read other side for explanation and requirements). _ TYPE OR PRINT LEGIBLY DATE 1/24(49 ADDRESS OF PROPOSED WORK 2 d 5-( in nip/ s-r. U.ba,wsf^R4 ASSESSORS MAP NO. 116 OWNER C l LLS ASSESSORS LOT NO. b D HOME ADDRESS 5.A Alth TEL. NO. 36>_/rb 1.- FULL NAMES AND. ADDRESSES OF ABUTTING OWNERS. Include name of adjacent property owners across any public street or way. (Attach additional sheet if necessary). Fee Ai. ao . A 1_,.., 5+. _ 1-) .uw s(.044 — CC-CC C — tr•( (3X. y. . _ or+K s r. Ci(4078) ' (lAt.T-Ainrl W.- n,Ai jr/4 c -*1 Lewis — 20grfYrof>,..i (41 G°34) /06 Bltrtit 14-4ICio-: O r L,- tq%t 4711//v c•/• Li 1-ito,( Y-i9-- 4 — on! -- m. osnCA- 13 5 / , S-C. 14- tiN,r-m46 iz:gt ce.),r 1✓,ke AGENT OR CONTRACTOR rAt La Pi iicTh _ TEL. NO. ADDRESS No N .-) 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'proed locations of new signs. (Attach additional sheet, if necessary). "" r % I /I Lekw (I4oits i-o e She; J t7_ Cr LiiN( (1.4,"/ cout,. ,. Fic CLR' 4 of D1 ii-mq uV -� Signed Owner-Contractor-Agent Space below line for Committee use. Received by H.D.C. 9 Date The C• •ficate is hereby Date �?r I Ti aterinal— .. p2 /;_-,,:i3 --awevice ll/o-ea4,..,,, By:_ • /'..e�l-d-Le - a Approved- ❑ - I i°ORTANT: If Certificate is approved,approval is subject to the 10 day appeal period provided in the Act. Oisannrnved I--I Town of Barnstable 1t Old Kings Highway Historic District Committee • SPEC SHEET FOUNDATION r-"ON 6 Be petct -* 6 -r-Tik) civt.s4- (A4 SIDING TYPE 1114 12001, Pi N E COLOR N - ' p . eA,a CHIMNEY TYPE COLOR tot-9oo ScA f Tb t-v1t-r (ram use Sri.6'` � 5 it ROOF MATERIAL COLOR PITCH 4€ WINDOWS 510M w COLOR SIZE TRIM COLOR W kc. DOORS i A-'r"V 11.E- 42^ pG�9` �' COLORS SHUTTERS I COLORS GUTTERS N A COLORS DECKS N A MATERIALS GARAGE DOORS N A COLORS SKYLIGHTS Nome_ SIZE COLORS SIGN3 COLORS ��� AppnovED FENCE i' Dta Di COLOR - nGam{ t r a /63 1*,; ¢i. "` tl0168e Fill out completely, including measurements and materials/colors to be used. Four copies of this form are requir ed for submittal of an application, along with Four copies of the plot plan, landscape plan and elevation plans, when applicable. SPECSBT Revised 11/98 ROUTE „ 6A r N84 07'20,E -150.00 I . L=152.5.1' ,�,11 R=92. 71 �11., i 4x.11� pl0 ,¢ring', , 0 \ 91O r N76.2564.,45-_III imoo` -o �11 • 0JSj O al II.: J (lib • LOT 4 �.111 LOT 2 LOT 1 W`� a' �. -2A, I) o N k 1 Co N80•00 46 E , vs\ 0.7' .... ) r421O' 0 .1 S8 p•01 18 ,___u\_ __N80 33%48 E 1' II.t:: m NUo .t I1 0 to K.............. ......„... 11 to Nor 7V SCALE co cz) kig W111 p't 1 tr It 16 DETAII "A" o o n� h, • _•Ilio W � A • 71.1 f , LOT 3 ca 11 ;5 u 10 I e&N 1'0 ka ,� 1 -_ tv co I = 1, °'Yl __ _ ~67 55 �`1�. $g 95 =__-=109,�, E 380'78 11 �o,� A'r COMMONWEALTH OF MASSACHUSETTS '1 Q`,10 RES. ZONE: "RF" This MORTGAGE INSPECTION Plan is For FLOOD ZONE: "C" Bank Use Only TOWN: _fil0T'_9A1?1V. AtBLE _ REGISTRY OWNER: F1D 'IELD_AFELL E DEED REF: _2Z65 LOJ_-______BUYER: _TICTQE_f B L'ILLIS DATE: 12/ OJ94 PLAN REF: _360/7 _SCALE:1"= 150 ___FT. I HEREBY CERTIFY TO TAPE_CQD_BANK_&_TREST_CQ___ AN Fo ITS SUCCESSORS' AND/OR ASSIGNS THAT THE BUILDING ... .� `':. YANKEE SURVEY SHOWN ON THIS PLAN IS LOCATED ON THE GROUND AS oa PAW. \-'': r SHOWN AND THAT ITS POSITION DOES ____ CONFORM A. �.4 CONSULTANTS TO THE ZONING LAW SETBACK REQUIREMENTS OF THE BEW `" 40B INDUSTRY ROAD TOWN OF ___BlIEig�S'�A_diLi— AND THAT �` . MARSTONS MILLS, MA. 02348 IT DOES NOT LIE WITHIN THE SPECIAL FLOOD HAZARD ' � ISTt `�" TEL: 428-0055 AREA AS SHOWN ON THE H.U.D. MAP DATED_$,U L _ .1 Ml uN ' FAX 420-5553 Co unit P 1 250001-0005—C THIS PLAN NOT MADE FROM AN INSTRUMENT 16097 GGM SURVEY, NOT TO BE USED FOR FENCES, ETC. (1otç t /1y1 i`. , ................... „,--------r k___ 11 \ _ A .-*--"±""•.-..., tittli 0 , ,/,,,,,r..„77....- —r—................,N, em i E tst 00a.`ih• V\VA ., • Loo/C�1 L+4 3 X 5 • grAN414 LLOR . . . . ... . . r..11-1;. ,.:.'•.!'.,-.."(t.......1.1,-...,:,?'..,...-..f.':;.,,,,,F1:111.1 . . • '; 1! 4 ., I.t rl i 7 I'2 001 .;! ,:i ,..ix • i 1 . .. . .„ .......,,. , ' 4111114"1"""11141.17111"""114.41.4.41.111.411111.4"1"."1"441111""einift............—.. - ' . rir..! .. • • • 611 7.1 . I . . - ..I , i 0 0 . t • ,._ 5 -1 014 ÷ I ‘i..4,..,1/4 eaul • • • cAc.c V teLl 8til! . n Ft glIE[ . a . .. . - • • I I I '--------71. ‘I, 1 4\•' r( \4\-3 „..... ..... r_ . .1.4 ,I .. - ° ~ ^ ^ | � » / ' ! . � ` / � ' l / ) | L-�-�.l~k'�-�_ ` ~� LAIU U "�v� U ��L ` ' � � � , ` ( . ' / • • OF BARNSTABLE, MASSACHUSETTS . ,,.-. a , d-'+ i. ASSESSORS MAPS • %,0 36 4, I 1 r poor ... .._.. s• `. ,b • • �i,• . .74 36 • '��. rt.N+' N 61 73.I 96 p� • �.o • w. 77 r 2.1/K • 34 i 36� 4 • • .65 AC-S • SS". <, s 98' j6 %.73 h • aQ pl Z. \ ©: 71r (/O-i:RM4044`" 3b0�. q. \ O `fib \\ Os • 'Y I 9 At 4 I t .N • v 14 IA $.17 AL d mt. o �9'op 74 L./f� o, n' • CEO a�' ,.a►w n• • 4:* •` I -13 e (1 . . \ . T. s y �� , bw 4. t t!d I �,M f 4e. ia_•S • mtg.":agit.,PbStiV6 a twil""at . . . • . \ . • , • �~ o y 4S. \;' i rle town on . arnstarne Department of Health Safety and Environmental Services en ° Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 ;) Ralph Crossen Fax: 508-790-6230 Building Commissioner 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: Estimated Cost Ia b Address of Work: 7(.)S 1 (YVA;„ 5T 1,6 /Owner's Name: ; (V; c c l l. s cAte of Application: 3 - - I hereby certify that: Registration is not required for the following reason(s): Work excluded by law ❑Job Under S1,000 Building not owner-occupied pawner 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 agent of the owner. Date Contractor Name Registration No. R Date Owner's Name q:forms:Affidav 1_, - -- ----- The Commonwealth of Massachusetts s �., :_-- �-:�:•--•:� Department of Industrial Accidents T = Office of Investigations • s., - __ 600 Washington Street fifi Boston,Mass. 02111 Workers' /, Compensation surance Affidavit nug..../nir/triicrCia,ftm:; �/�� -/,2�� �:.:/ i�a/ „ %g" Y% %//////��/ , ,%' '''---... 1/name: -`1c-6- e_ ' i_Aocation: c>/d S / /OA. /1 ST AI 4) 1 min5 / 6 64- /Y)'._ 62-1,c,fr phone# (fir ) 3 6)..l -i s- a- (�'I am a homeowner performing all work myself. ❑ I am a sole pro rietor and have no one working in any capacity ❑ I am an employer providing workers' compensation for my employees working on this job. company name: address: city: phone#: insurance co. policy# • aiiaiiaii ' iiaiiaiiiiiiiia//%///a/a/. oiii,,. ❑ I am a sole proprietor, general contractor, or homeowner(circle one)and have hired the contractors listed below who have the following workers' compensation polices: company name: address: city: phone#: insurance co. oiicv# ........:.. .... i,,/ . 7oiai�a�aii��iiiiiaiiiiaoioo��ai�iaiai���iii�a�iiaiaiiaiaiiiaaiiai�iiiiaiiia������/��iaii/ai��/��i�����ii/��iiaaia�//���ii/�ii 3/���i�e�/G%/%///' comnanv name: • address: city: phone th . .......... insurance co. / 7 / �., //., '//%/r. Failure to secure coverage as required under Section 25A of MGL 152 can lead to the imposition of criminal penalties of a line up to S1.500.00 and/or one years'imprisonment as well as civil penalties in the form of a STOP WORK ORDER and a tine of S100.00 a day against me. I understand that a copy of this statement may be forwarded to the Office of Investigations of the DIA for coverage verification. I�je hereby certi y under the pains and penalties of perjury that the information provided above is true and correct. Signature ( . - �- — Datete .3_` — 5, 7 Print name Phone# .. a .. .......... . w..� v, . ..�....4'4 I• ..y•I::I:••. official use only do not write in this area to be completed by city or town official city or town: permit/license# ❑Building Department ❑Licensing Board 0 check if immediate response is required ❑Selectmen's Office ❑Health Department contact person: phone#; ❑Other (muse 9,95 PJA) Information and Instructions Massachusetts General Laws chapter 152 section 25 requires all employers to provide workers' compensation for their employees. As quoted from the "law", an employee is defined as every person in the service of another under any contra-: 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 more of the foregoing engaged in a joint enterprise, and including the legal representatives of a deceased employer, or the receive: c: trustee of an individual, partnership, association or other legal entity, employing employees. However the 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 dwelling house or on the grounds or building appurtenant thereto shall not because of such employment be deemed to be an employer. MGL chapter 152 section 25 also states that every state or local licensing agency shall withhold the issuance or renews: 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 chapter have been presented to the contracting authority. Applicants Please fill in the workers' compensation affidavit completely, by checking the box that applies to your situation and supplying company names, address and phone numbers along with a certificate of insurance 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 required to obtain a workers' compensation policy,please call the Department at the number listed below. /// // i /i City or Towns Please be sure that the affidavit is complete and printed legibly. The Department has provided a space at the bottom of the affidavit for you to fill out in the event the Office of Investigations has to contact you regarding the applicant. Please be sure to fill in the permit/license number which will be used as a reference number. The affidavits may be returned fo 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 questions. 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 fax#: (617) 727-7749 phone#: (617) 727-4900 eat 406, 409 or 375 TabledS2.1b(smsafaeod) Preteriptive Packages for One sad Two-Family Rssadendsl Buildings Heated with Form Fuels • • MAXIMUM MINIMUM CeilingGlazing Floor Baconeat Slab B /Cooling Areal %) U.due It-value Remind Well PIS 44= Efraac=? Padraa_e Rrvniue Rrvoiusr 570I to 6500 Hewing Degree Days' Q 12% 0.40 38 13 19 10 Me Normal R 12% 0.52 30 19 19 10 Normal S 12% 030 MIMI 13 19 to Q T 15% 0.36 38 WA Norma! U 15% 0.46 38an 10III Normal ✓ 15% 0.44 38 WA 8S AFUE W 15% 032 30 19 19 10 IFNI 8S AFUE X 18% 032 38 13 • 23 WA Normal Y 18% 0.42 38 19 25 WA WA Norma! Z 18% 0.42 38 13 19 t0 6 90 AFUE AA 19% 0.50 30 19 19 10 6 90 AFUE 1. ADDRESS OF PROPERTY: 7 2. SQUARE FOOTAGE OF ALL ;,k OR W• : 3. SQUARE FOOTAGE OF ALL G • - r •• 4. %GLAZING AREA(#3 DIVIDED : #2): S. SELECT PACKAGE(Q—AA-see above \ , NOTE: OTHER MORE INVOLVED M •DS OF DETERMINING ENERGY REQUIREMENTS ARE AVAILABLE. ASK US FOR THIS INFORMATION. BUILDING INSPECTOR APPROVAL: YES: NO: • q-forms-f980303a Footnotes to Table JS.Zlb: Glazing area is the ratio of the area of the glazing assemblies (including sliding-glass doors, skylights, and. basement windows if located in walls that enclose conditioned space,but excluding opaque doom)to the gross wall area,expressed as a percentage.Up to 1%of the total glazing area may be excluded from the U-value requirement For example,3 ft•of decorative glass may be excluded from a building design with 300 Rs of glazing area. •After January 1, 1999,glazing U-values must be tested and documented by the manufacturer in accordance with the National Fenestration Rating Council (NFRC) test procedure, or taken from Table J1S.3a. U-values are for whole units:center-of-glass U-values cannot be used. ' The ceiling A-values do not assume a raised or oversized truss construction. If the insulation achieves the full insulation thickness over the exterior walls without compression, R-30 insulation may be substituted for A-)8 insulation and R 38 insulation may be substituted for R-49 insulation. Ceiling R values represent the sum of cavity insulation plus insulating sheathing (if used). For ventilated ceilings, insulating sheathing must be placed between the conditioned space and the ventilated portion of the roof. 'Wail R-values represent the sum of the wall cavity insulation plus insulating sheathing (if used). Do not include exterior siding,structural sheathing,and interior drywall.For example,an R 19-requirement could be met:EITHER by R 19 cavity insulation OR R 13 cavity insulation plus R-6 insulating sheathing. Wall requirements apply to wood-frame or mass(concrete,masonry,log)wall constructions,but do not apply to metal-frame construction. 'The floor requirements apply to floors over unconditioned spaces(such as unconditioned crawlspaces,basements, or garages).Floors over outside air must meet the ceiling requirements. - `The entire opaque portion of any individual basement wail with an average depth less than 50%below grade must meet the same R value requirement as above-grade walls. Windows and sliding glass doors of conditioned basements must be included with the other glazing. Basement doors must meet the door U-value requirement described in Note b. ' A-value requirements are for unheated slabs.Add an additional R-2 for heated slabs. •If the building utilizes electric resistance heating use compliance approach 3,4, or 5. If you plan to install more than one piece of heating equipment or more than one piece of cooling equipment, the equipment with the lowest efficiency must meet or exceed the efficiency required by the selected package. 'For Heating Degree Day requirements of the closest city or town see Table JS.2.1a NOTES: a)Glazing areas and U-values are maximum acceptable levels.Insulation R values are minimum acceptable levels. R value requirements are for insulation only and do not include structural components. b)Opaque doors in the building envelope must have a U-value no greater than 035. Door U-values must be tested and documented by the manufacturer in accordance with the NFRC test procedure or taken from the door U-value in Table J1S.3b. If a door contains glass and an aggregate U-value rating for that door is not available,include the glass area of the door with your windows and use the opaque door U-value to determine compliance of the door. One door may be excluded from this requirement(i.e.,may have a U-value greater than 035). c)If a ceiling,wail,floor,basement wall,slab-edge,or crawl space wall component includes two or more areas with different insulation levels,the component complies if the area-weighted average R-value is greater than or equal to the R-value requirement for that component. Glazing or door components comply if the area-weighted average U- value of all windows or doors is less than or equal to the U-value requirement(035 for doors). • • 43 Department of Health Safety and Environmental Services /'- Building Building Division m''B 367 Main Street,Hyannis MA 02601 Mess. .i639. 1 rep Mph A Office: 508-862-4038 Ralph Crossen Fax: 508-790-6230 Building Commissioner HOMEOWNER LICENSE EXEMPTION / Please Print DATE: 3" 7 " 19 �TOB LOCATION: 02)S"/ S% #,..),"?.. �i it`4 G /4 O)GG number / street village /IOMEOWNER �� c-�-C� / /(//C7�w �'/��f (/52*)-3(0 1 i5 l � c/0 J-)3 .4''W° name home phone# work phone# CURRENT MAILING ADDRESS: —S/I"rn city/town state zip code The current exemption for"homeowners"was extended to include owner-occupied dwellings of six units or less and to allow homeowners to engage an individual for hire who does not possess a license,provided that the owner acts as supervisor. DEFINITION OF HOMEOWNER Person(s)who owns a parcel of land on which he/she resides or intends to reside,on which there is,or is intended to be,a one or two-family dwelling,attached or detached structures accessory to such use and/or farm structures. A person who constructs more than one home in a two-year period shall not be considered a homeowner. Such "homeowner"shall submit to the Building Official on a form acceptable to the Building Official,that he/she shall be responsible for all such work performed under the building permit. (Section 109.1.1) The undersigned"homeowner"assumes responsibility for compliance with the State Building Code and other applicable codes,bylaws,rules and regulations. The undersigned"homeowner"certifies that he/she understands the Town of Barnstable Building Department minimum inspection procedures and requirements and that he/she will comply with said procedures and requirements. . Signature of Homeowner Approval of Building Official Note: Three-family dwellings containing 35,000 cubic feet or larger will be required to comply with the State Building Code Section 127.0 Construction Control. HOMEOWNER'S EXEMPTION The Code states that: "Any homeowner performing work for which a building permit is required shall be exempt from the provisions of this section(Section 109.1.1-Licensing of construction Supervisors);provided that if the homeowner engages a person(s)for hire to do such work,that such Homeowner shall act as supervisor." Many homeowners who use this exemption are unaware that they are assuming the responsibilities of a supervisor(see Appendix Q, Rules&Regulations for Licensing Construction Supervisors,Section 2.15) This lack of awareness often results in serious problems, particularly when the homeowner hires unlicensed persons. In this case,our Board cannot proceed against the unlicensed person as it would with a licensed Supervisor. The homeowner acting as Supervisor is ultimately responsible. To ensure that the homeowner is fully aware of his/her responsibilities,many communities require,as part of the permit application, that the homeowner certify that he/she understands the responsibilities of a Supervisor. On the last page of this issue is a form currently used by several towns. You may care to amend and adopt such a form/certification for use in your community. Q:FORMS:EXEMPT