MICHAEL SWEENEY and SUSAN SWEENEY vs. MARK AUDETTE, DAVID NEAL and ROBERT DANIELSON, as they are members of the BOARD OF APPEALS OF HAMILTON.

This is an appeal under c. 40A, §17 of the denial by the Defendant Board of Appeals ("Board") of the Plaintiffs' Site Plan" The Plaintiffs propose to use a 14 acre lot in Hamilton for a horse farm, including a presently existing single-family farmhouse, a 35 stall barn, pastures and related facilities for the training, breeding, boarding and sale of horses. The Plaintiffs allege that the Board exceeded its authority in refusing to approve the Site Plan and further claim that the denial is invalid because of the agricultural exemption of G.L. c. 40A, §3.

I find that there is no genuine issue as to any fact material to the resolution of this matter and that, accordingly, the case is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976).

The Board's decision denying the Plaintiffs' site plan approval is based upon: 1) waste disposal and surface and subsurface drainage, and 2 ) convenience and safety of vehicular and pedestrian movement on the site.

A review of the Hamilton Zoning By-law ("By-law") reveals that the site plan review contemplated therein is for "non-special permit" site plan review. As such, that review is limited to a determination that the proposed use is reasonably designed to comply with provisions of the By-law. In any event, G.L. c. 40A, §3 specifically prohibits a by-law from unreasonably regulating or requiring a special permit for the use of land for primary purposes of agriculture. Such prohibition would extend to any site plan review based upon special permit requirements. It has moreover been determined that the purchase and raising of horses, their stabling, training, breeding and their participation in horse shows are all part of one whole and constitute agriculture uses as used in said statute. Steege v. Board of Appeals of Stow, 26 Mass. App. Ct. 970 (1988).

In this instance, the Board's authority was limited to approval with reasonable conditions consistent with the reasonable use of the site. The denial of site plan approval exceeded the authority of the Board.

Certainly, a municipality may regulate such matter as waste disposal, drainage and even off-site, but related, traffic concerns, but such regulation must be by the proper authority. I find that the Board of Appeals is not, under these circumstances, such authority.

Accordingly, the Plaintiffs' motion is allowed, the decision of the Board is annulled and the Plaintiffs' Site Plan is hereby approved.

By the Court