A PLUS WASTE & RECYCLING SERVICES, LLC vs. DIANE C. STEWART [Note 1] and others [Note 2]

WELCH, J. Aggrieved by the granting of a motion to dismiss for want of subject matter jurisdiction, plaintiff-appellant A Plus Waste and Recycling Services, LLC ("A Plus") appeals.

It is undisputed that at all times relevant to this appeal, A Plus operated a single-stream recycling and composting operation at a certain property in Middleborough, Massachusetts. At some point after A Plus began its composting operations, the town of Middleborough received complaints from neighboring residents about unpleasant odors emanating from the A Plus facility. In March, 2016, the Massachusetts Department of Environmental Protection temporarily revoked A Plus's operating permit. The Middleborough Board of Selectmen, acting as the Middleborough Board of Health ("Board"), held hearings in April and May, 2016, and on July 25, 2016, having determined that A Plus's composting operations created a "nuisance" for the purposes of G.L. c. 111, § 123, [Note 4] voted to adopt an Order of Abatement ("Order"). The Order required A Plus to remove all composting materials from the Middleborough facility by a date certain, and precluded it from accepting any new composting materials. [Note 5]

On August 4, 2016, A Plus petitioned pursuant to G.L. c. 111, § 125A for judicial review of the Board's Order. Section 125A of G.L. c. 111 provides, in part, as follows:

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"If, in the opinion of the board of health, a farm or the operation thereof constitutes a nuisance, any action taken by said board to abate . . . said nuisance under sections one hundred and twenty-two, one hundred and twenty-three and one hundred and twenty-five shall . . . be subject to the provisions of this section; provided, however, that the odor from the normal maintenance of livestock or the spreading of manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or farming lands shall not be deemed to constitute a nuisance" (emphasis added).

G.L. c. 111, § 125A.

The definitions at § 1 of the statute include the following:

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

G.L. c. 111, § 1.

Where § 125A applies, it also confers on the owner or operator of a "farm" subject to a nuisance-abatement order a right to petition for judicial review of the abatement order in the District Court. See G.L. c. 111, § 125A. On such a petition, the District Court "shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said order and affirm, annul, alter or modify the same as justice may require. The parties shall have the same rights of appeal on questions of law as in other civil cases in the district courts." Id.

While conceding in its petition that its "business" is "composting organic material," A Plus states conclusorily that the business "qualifies as a farming operation under the definition of 'farming' or 'agriculture' set forth in G.L. Ch. 111, Section 1," and that its "organic composting operation conducted on the Property is considered a farming operation by the Commonwealth of Massachusetts." Neither the petition nor its attachments provide any factual support for these conclusions.

Having first responded to A Plus's petition for review, the Board moved in June, 2017 to dismiss the petition on the ground that, as the A Plus composting facility was not a "farm," the court lacked subject matter jurisdiction over the matter. Mass. R. Civ. P. 12(b)(1). In support of its motion, the Board attached an affidavit of Diane C. Stewart ("Stewart" and "Affidavit"). Stewart represents that the Affidavit is based

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on her personal knowledge. In it, Stewart avers that the Middleborough facility has not been used as a "farm" since the inception of A Plus's composting business there.

A Plus opposed the Board's motion to dismiss and moved to strike the Affidavit, arguing that the Affidavit failed to meet the requirements of Mass. R. Civ. P. 56(e) in that it did not set forth "facts as would be admissible in evidence." Specifically, A Plus argues that Stewart's statements that the composting facility was not a "farm" were hearsay, and that Stewart was not competent to make such a determination.

After hearing, the trial court denied A Plus's motion to strike the Affidavit. Correctly recognizing that the Board's attack on A Plus's claims was not a facial challenge to the adequacy of the allegations in A Plus's petition, but a factual challenge to the substance of those allegations, the judge properly gave no presumptive weight to the jurisdictional facts as set out in A Plus's complaint, looking instead to A Plus to prove jurisdictional facts. See, e.g., Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 710-711 (2004) ("factual challenge" to subject matter jurisdiction, made through presentation of extra-pleadings material, "gives no presumptive weight to the averments in the plaintiff's complaint, and requires the court to address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff and the defendants"); Hiles v. Episcopal Diocese of Mass., 437 Mass. 505, 515-516 (2002). The trial court determined that A Plus's composting activities were not protected under G.L. c. 111 and allowed the motion to dismiss. There is no indication that the trial judge credited or considered the substance of Stewart's statements in the Affidavit that the Board submitted. A Plus appealed both the dismissal and the denial of its motion to strike the Affidavit.

We review the motion to dismiss de novo. See, e.g., New Bedford Educators Ass'n v. Chairman of Mass. Bd. of Elementary & Secondary Ed., 92 Mass. App. Ct. 99, 106-107 (2017). We begin and end with our review of A Plus's petition and its attachments. First, A Plus concedes that its Middleborough operations were composting and recycling. There is no suggestion that A Plus engaged in any other activity on that site. Second, the only support for A Plus's claim to protection under G.L. c. 111, § 125A as a "farm" are its own conclusory statements identifying itself as such. While in the absence of a proper challenge to them, we give deference to the factual allegations of a plaintiff's complaint, we "do not accept legal conclusions cast in the form of factual allegations." Schaer v. Brandeis Univ., 432 Mass. 474, 477-478 (2000) (considering Rule 12(b)(6) motion to dismiss); Curtis v. Herb Chambers I-95, Inc., 75 Mass. App. Ct. 662, 666 (2009), S.C., 458 Mass. 674 (2011), quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001) (judge must "dispose[] of a Rule 12(b)(1) sufficiency challenge on the basis of the plaintiff's version of the relevant events, taking the well-pleaded facts as true and drawing all reasonable inferences in favor of the pleader."). The plain language of G.L. c. 111, § 1 does not support A Plus's characterization of its composting concern as a "farm": it is clear that "composting" is not among the facets of "farming" or "agriculture" explicitly set out in that section. Likewise, the activity of composting is not consistent with the examples of the kinds of activities contemplated there. The protections of § 125A are limited to "odor from the normal maintenance of livestock or the spreading of manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or farming lands." The odors at issue

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here are not the result of any of these activities, nor do they arise from activities on "horticultural or farming lands." On its face, the petition fails to establish that the composting operation is any more of a "farm" than a meat-packing plant is a ranch. As A Plus has not shown any factual basis for its claim to protection under G.L. c. 111, § 125A, it has failed to show that the District Court had subject matter jurisdiction over its petition for review. The petition is dismissed.

In light of this determination, we do not reach the propriety of the trial court's denial of A Plus's motion to strike the Affidavit.

So ordered.