MISC 133527

October 15, 1990

Worcester, ss.



By complaint filed on April 11, 1990, Irving G. Morgan, Trustee of Harton Realty Trust ("Plaintiff"), appeals pursuant to G.L. c. 40A, §17, from a decision of the Defendant, Board of Selectmen of the Town of Harvard ("Board"), denying his application for a special permit to remove earth materials from a certain parcel of land owned by him, located at 60 Sawyer Lane in Harvard ("Locus"), so as to construct thereon a horse track for the raising and training of registered Morgan horses. The Plaintiff also seeks a determination, pursuant to G.L. c. 240, §14A and c. 231A, §1, of the extent to which the Town of Harvard Protective By-Law ("By-law") affects his proposed use of Locus.

The matter was tried on January 3, April 4 and May 23 of 1990, at which times the Court appointed a stenographer to record and transcribe the proceedings. Seven (7) witnesses offered testimony and ten (10) exhibits, all of which are incorporated herein for purposes of any appeal, were entered into evidence. An Agreed Statement of Facts was filed with the Court. A view of Locus was taken on May 24, 1990, with all counsel present.

On all of the evidence, I find the following facts:

1. The Plaintiff has owned and resided at Locus, which parcel consists of approximately sixty-nine (69±) acres of agricultural land, since 1985. Locus lies at the end of Sawyer Lane, a private way in the Town of Harvard (See Exhibits No. 3, 7A, 7B, 7C, 9 and 10).

2. Since the fall of 1972, the Plaintiff has raised, bred, trained and boarded registered Morgan horses. At the present time, he owns seven (7) Morgan horses, six (6) of which are kept in an outdoor paddock at Locus.

Morgan horses are a breed raised for riding and showing and they are in fact competitively shown throughout this county at least. There is a direct relationship between the "points" which these horses earn at shows and their value. The successful training of a horse requires considerable effort and, of course, sufficient and suitable area in which to train. To this end, the Plaintiff proposes to construct an outdoor elliptical riding area on Locus, which area, as shown on a plan entitled "Special Permit Grading Plan for Earth Removal, Sheet 1 of 2", dated November 15, 1988 (Exhibit No. 3), will consist of approximately five (5) acres, with a track of about a quarter of a mile in length, together with an infield for grazing and training horses.

3. Locus is situated within Harvard's Aricultural-Residential ("AR") zoning district. Section 5.2 of the By-law provides for the following "permitted uses" in the AR zone:

a) As provided in the Single Residence Use subsection.

b) As provided in the Agricultural Uses subsection.

c) As provided in the Conversion for Multiple Residence, Conversion of Seasonal Residence, Earth Moving, and Institutional Uses subsections.

d) Golf Course . . . subject to the Site Standards subsection.

4. "Agricultural Uses" are defined in Section 4.1 of the By-law, as follows:

Agricultural, including truck gardening, orchardry, forestry, or a nursery; a dairy farm or raising of livestock. . . .

5. Section 4.10 of the By-law defines "Earth Moving" uses as follows:

Moving of soil and stone within the premises is permitted . . . For the purposes of this Bylaw, soil includes loam, peat, sand, and gravel.

Removal of soil and stone from the premises or land from filling from off the premises. . . .

a) as an accessory use; removal of more than 15 cubic yards in a year is accessory only if the removal is from the site of and incidental to grading required for permitted construction of a structure or way; or

b) for construction of or, if authorized by the Board of Selectmen by special permit. . . .

The Board of Selectmen may authorize other soil removal operations by special permit . . . Such soil removal shall be limited in scale and meet the following standards:

a) Except for one access driveway, all operations, including loading and excavation of earth material and parking and storage of equipment and material, shall be set back at least 100 feet from lot boundaries and at least 300 feet from the centerline of any street.

b) Excavation shall be conducted on no more than one acre for each year of the permit, averaged over the duration of the permit.

c) Lot area shall be at least 15 acres.

d) No more than 25,000 cubic yards of earth material shall be removed from the lot in any one year. . . .

6. On or about December 15, 1988, the Plaintiff applied to the Board for a special permit for earth removal, pursuant to Sections 8.2 ("Special Permits") and 4.10 ("Earth Moving") of the By-law (See Exhibit No. 2), so as to construct the aforementioned horse track and training field on Locus. The earth removal proposed by the Plaintiff complies with those subsections of Section 4.10 concerning setbacks, lot area and restoration, and to subsection (a) of Section 8.2, which reads as follows:

A special permit shall be authorized only subject to the Site Standards subsection and any special requirements for the particular class of special permit and if, in addition, the authorizing Board finds that granting of the permit

a) will not result in substantial increase of volume or rate of surface water runoff to neighboring properties and streets, and will not result in substantial danger of pollution or contamination of the ground water supply, a ground water absorption area, a well, pond, stream, watercourse, W district, or inland wetland. Any and all surface water runoff resulting from development shall be retained within the lot in which it originates or shall be discharged into existing identifiable watercourses without material impact on abutting properties.

7. The Board held a public hearing on the Plaintiff's special permit application on February 16, 1989. This hearing was continued to March 15, 1989, at which time the Board voted that the application be denied.

8. On March 29, 1989, the Board filed its decision with the Office of the Harvard Town Clerk (See Exhibit No. 5). This decision was based on the following grounds:

1 - It is neither advantageous to the neighborhood and community to relax standards (b) and (d) [of Section 4.10 of the By-law] nor is that the minimum to achieve the project, since an alternative means of development involving only minimal removal and mostly cutting and filling is available.

2 - The proposed soil removal even without relaxation and in conformance with the standards of s.4.10 is not limited in scale since an alternative method of development without such removal is possible.

3 - Access to the project over Sawyer Lane is not in harmony with Section 1 (i) and (k) in that gravel trucks on that private way will not provide safe, rapid traffic flow and will be unsuitable for a residential street.

4 - The soil removal project and access will not conserve natural conditions.

The issue before the Court is whether the Plaintiff's proposed removal of earth materials from Locus is reasonably necessary and incidental to an agricultural use, namely that of raising and training horses, and, therefore, is exempt from the provisions of Harvard's By-law. The Defendant Board contends that the Plaintiff's motive in removing earth materials from Locus is purely financial in nature and, accordingly, he is not entitled to the agricultural use exemption of G.L. c. 40A, §3. In addition, the Board argues that, insofar as there is an alternative method by which the Plaintiff may remove the necessary amount of gravel from Locus, specifically by cutting and filling (Finding No. 8), the special permit sought by the Plaintiff was properly denied.

Section 3 of G.L. c. 40A, the Zoning Act, sets forth the following limitation with respect to zoning:

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 . . .

Although the statute does not define the term "agriculture", the "agricultural use exemption" has been interpreted broadly by appellate courts. Lincoln v. Murphy, 314 Mass. 16 , 18-20 (1943); Town of Tisbury v. Martha's Vineyard Commission, 27 Mass. App. Ct. 1204 , 1205 (1989).

It is a well-established rule that, where a statute fails to expressly define its words or phrases, we interpret them according to their common and approved usages, without enlargement or restriction and without regard to the court's own conception of expediency. Foster v. Mayor of City of Beverly, 315 Mass. 567 , 569 (1944); Kurz v. Board of Appeals of North Reading, 341 Mass. 110 , 112 (1960); Jackson v. Building Inspector of Brockton, 351 Mass. 472 , 475 (1966); Langevin v. Superintendent of Public Buildings of Worcester, 5 Mass. App. Ct. 892 (1977); Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham, 382 Mass. 283 , 290 (1981). The usual and accepted meaning of a word or phrase may be derived from sources which are presumably known to the enactors of the statute, such sources including legal contexts and dictionary definitions. Building Inspector of Mansfield at 402; Steege v. Board of Appeals of Stowe, 26 Mass. App. Ct. 970 , 971 (1988). The term "agriculture" is defined as "the science or art of cultivating the soil, producing crops, and raising livestock." Webster's New Collegiate Dictionary 24 (1981). The word "livestock" means "animals kept or raised for use or pleasure . . .", Id. at 667, and has also been defined as "domestic animals, such as cattle, horses, sheep, hogs, or goats, raised for home use or for profits." Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 , 403 (1986 ) citing American Heritage Dictionary 764 (1976).

Additionally, insofar as sound principles of statutory construction dictate that the interpretation of provisions having identical language be uniform, it is necessary to examine the term "agriculture" as it is used in other legislation. Webster v. Board of Appeals of Reading, 349 Mass. 17 , 19 (1965); Building Inspector of Mansfield at 403; Steege at 971. G.L. c. 61A, §1, dealing with the assessment and taxation of agricultural and horticultural land, provides as follows:

Land shall be deemed to be in agricultural use when primarily and directly used in raising animals, including, but not limited to, dairy cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, bees and fur-bearing animals, for the purpose of selling such animals or a product derived from such animals or a product derived from such animals in the regular course of business; or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use in raising such animals and preparing them or the products derived therefrom for market (emphasis added).

Further, the term "agriculture" is defined in G.L. c. 128, §lA, which chapter governs the general subject of "Agriculture", as follows:

"Agriculture" . . . shall include farming in all its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any practices . . .

In view of all of the evidence before the court, as well as the broad definitions which have been afforded the term "agriculture", I find that the Plaintiff's proposed removal of earth materials from a portion of his land at 60 Sawyer Lane in Harvard, so as to construct a horse track and training field thereon, is primarily an "agricultural use", inasmuch as such project is reasonably necessary to, and in furtherance of, the raising and training of registered Morgan horses which are owned and maintained by the Plaintiff and which are, and which will remain, on his property. Accordingly, under G.L. c. 40A, §3, this use is exempt from the provisions of the Harvard Protective By-law. That there may be alternative methods available for accomplishing the ends sought by the Plaintiff is immaterial to the question of "agricultural use". Without question, there could be instances where the overall benefits of an "alternative" method, complying with the By-law, would be equivalent to, or greater than, the noncomplying proposal. In such instances, the subject regulation would not appear to be unreasonable. I do not, however, find such to be the case herein. Rather, I find that the alternative methods suggested by the Defendants, while possible, would be considerably more costly and would result in an area less suitable to the Plaintiff's proposed agricultural pursuit.

I thus rule in summary that, inasmuch as the Plaintiff's proposed construction of a horse track, with an infield grazing and training area, on Locus is reasonably necessary to, and in furtherance of, an agricultural use, pursuant to G.L. c. 40A, §3, the decision of the Harvard Board of Selectmen, denying the Plaintiff's application for a special permit for such construction on Locus, must be annulled, and that the Plaintiff is entitled, as of right, to carry out construction on Locus as planned.

Judgment accordingly.