F. DAVID von JESS vs. CHARLES D. O'NEAL, ALFRED S. GLAVEY, RAYMOND M. CORNISH, SALLY BOWERS, JANIS R. PLAUE, B. KENNETH AMMENWERTH, NANCY R. BRADBURY, MICHAEL KNUPP and PAUL J. LIDDELL, as they are members of and alternate members of and constitute the BOARD OF APPEALS OF THE TOWN OF LITTLETON, and the TOWN OF LITTLETON.

The plaintiff F. David von Jess of Acton, in the County of Middlesex appeals pursuant to the provisions of G.L. c. 40A, §17 from a decision of the Zoning Board of Appeals of the Town of Littleton denying him, in substantial measure, relief from a decision of the Littleton Building Inspector. The plaintiff also alleges in his complaint pursuant to the provisions of G.L. c. 240, §14A that the Littleton Zoning By-law conflicts in part with G.L. c. 40A, §3 and accordingly is invalid. I concur with the plaintiff's position and find and rule that this litigation is governed by the state statute.

The plaintiff, together with his siblings and extended family, seeks to establish a farm stand selling local crops, grown by him or under his direction, produce and other agricultural, horticultural and viticultural products obtained from third persons, baked goods and handcrafted goods all made by family members, jams, jellies, dairy products, flowers, nursery stock, and related kitchen utensils. The structure intended to accommodate the operation is a handsome barn historically used for storage and renovated to serve as a showcase for the plaintiff's stock.

The present controversy has its roots in the treatment by the local zoning by-law of a farm stand as a permitted accessory use only in a residential district. It encompasses the related question as to the permissible limits that may be placed on the stock of a farm stand. Finally, the propriety of the inclusion within the building of offices for the agricultural personnel is raised.

A trial was held in the Land Court on September 5 and 7, 1990, at which a stenographer was appointed to record and transcribe the testimony. Fifty exhibits were introduced into evidence, some with multiple parts and one a video tape showing locus and other areas within Littleton, which are incorporated herein for the purpose of any appeal. Six witnesses testified: the plaintiff testified in his own behalf; he also called Douglas Roberts, a marketing specialist for the Massachusetts Department of Food and Agriculture, and Cecelia Ann White and Jennifer von Jess, both plaintiff's sisters. Roland Bernier, Littleton Building Commissioner and Zoning Officer, and John W. Flagg, a local farmer, testified for the defendants.

On all the evidence, I find and rule as follows:

1. The plaintiff acquired title to Lots 2 and 3, situated on King Street (also known as Routes 2A and 110), as shown on a plan entitled "Plan of Land in Littleton, Mass.", dated July 1983 by Richard J. Ludwig and recorded as Plan No. 1102 of 1983 in the Middlesex South District Registry of Deeds (to which all recording references relate) (Exhibit No. 18) from Lawrence J. Kenney, Jr., Trustee, by deed dated January 18, 1990 and recorded in Book 20334, Page 103 (Exhibit No. 1). Lot 2 contains 40,000 square feet and on it is situated the farm stand and its parking; the other, a larger lot, contains 100,750 square feet upon which are situated two green houses and which will be devoted to the raising of flowers and nursery stock.

2. There has been a barn on locus for many years, and it now has been substantially renovated to house the plaintiff's proposed farm stand, offices and storage. The plaintiff intends to add loam and to fertilize the area to assure the land's ability to support crops. The proposed farm stand venture includes a nursery, greenhouses, a landscaping division, the growing and selling of crops, plants and flowers, assorted items referred to above and various similar or related items to be sold in connection therewith. Five rooms are planned for the second floor to accommodate offices for various aspects of the operation: nursery/greenhouse, crop farming, farm stand management, accounting/personnel/inventory and the plaintiff's office for overall enterprise management.

3. Prior to purchasing the land the plaintiff investigated various aspects of the zoning in Littleton including a review of the various farm stand operations located in the town. One of the plaintiff's sisters spoke to Mr. Roland Bernier, the building inspector, in an effort to obtain his opinion as to the proposed farm stand prior to the plaintiff's purchase of the locus. He advised her that if the plaintiff stayed within the building's "foot steps" (i.e., footprint), there should be no difficulty. He then handed her a copy of the "Cataldo Decision" so-called and informed her that as to farm stands, it represented the high water mark in decisions of the defendant Zoning Board of Appeals ("ZBA"). Therein, the board permitted the sale by Cataldo of nursery and many related items proposed by von Jess; stock such as cut Christmas trees, evergreen wreaths and other items "which bear the same relationship to products of the land as those noted [here] are also allowed as an accessory use". The landscaping use proposed by Cataldo was limited to the transplanting of nursery items; no section of the by-law is cited. The decision also permitted the sale of produce regardless of origin.

4. In November, 1989 the plaintiff wrote to the building inspector to obtain his opinion as to the operation he proposed and explained that he expected "to raise a majority of produce through on-site, and leased cultivation" (Exhibit No. 5A). A general list of items he sought to sell included "vegetables, fruits, herbs, dairy products, jelly, jam, candy, nuts and items immediately associated with their preparation for consumption [as well as "family crafted handiworks]". Moreover, the greenhouse and nursery business would include the "propagation, holding and sale of plants, the sale of cut flowers, sale of seasonal plants, flowers and small nursery items (to be used in their landscaping operation and sold to the general public]". In this regard, sales would also include "peat, humus, bark mulch, woodchips, firewood and fertilizers. Seasonally [the stand] would offer: (1) Christmas trees, wreaths, roping, swags and decorations; (2) seeds and flats of annual flowers and vegetables [sic]; (3) corn sheaths, gourds, pumpkins, bulbs and chrysanthemums, and similar items". Finally, the letter stated "[o]ur model for this operation is other local, active farms and nurseries with year-round farmstands [sic], together with their accepted sales and associated sales, such as Nashobaside Farm in Littleton...." A nearly verbatim letter was sent a month later together with a more complete list of items for sale (Exhibit No. 5B).

5. Mr. Bernier replied by letter dated December 13, 1989 (Exhibit No. 6). In short, he acknowledged that use of the premises as a farm, nursery or greenhouse was permitted of right, as was the importation of loam (as opposed to the removal of soil). The letter continued, "[p]roducts not produced by the owner of the land on which the farm, farmstand [sic] or nursery is located ie: [sic] vegetables, fruits, herbs, dairy products, jellies, jams, candies, nuts and other food items, are not permitted" (emphasis in original). In addition, handcrafts were not permitted, as well as cut Christmas trees not produced by the owner and related items.

Finally, the landscaping business was permitted, but only "for the sole purpose if transplanting stock grown from the nursery or farm. . . ."

6. The Littleton Zoning By-law was first adopted in 1951. The May, 1988 Town Meeting repealed all previous versions and substituted therefore the by-law which is now Chapter 173 from the Code of the Town of Littleton (Exhibit No. 2). Section 173-26 of the current by-law qualifies "Agricultural Uses", as "Farm, greenhouses", and permits such a principal use as of right in all four zoning districts; "Roadside stands (agricultural)" are also permitted of right in all zoning districts, but only as accessory uses. It is this latter provision which the plaintiff challenges as invalid. The only guidance as to the scope of this regulation is the definition of Accessory Building or Use, §173-2 of the by-law, as "[a] building not attached to any principal building, or a use customarily incidental to and located on the same lot with the principal building or use". Section 173-53 describes "Accessory Uses" as "[c]ustomary access [sic] [accessory] uses are permitted as specified in §173-26B. Uses shall not be considered accessory if they occupy more than thirty percent (30%) of the floor area or more than fifty percent (50%) of the land area of any lot".

7. The plaintiff appealed to the ZBA from the decision of the building inspector. In a decision dated February 21, 1990, the ZBA, after a public hearing, sustained the building inspector in part, but in addition to the items approved by the building inspector for sale at the farm stand, allowed the sale of cut Christmas trees and the "sale of farm products grown elsewhere under the direction of the owner of the land on which the farm stand is located. . . ." The Town and the ZBA adhere to the position that the sale of farm products grown elsewhere under the direction of the owner of the land on which the farm stand is located may be sold at the locus. This is in accordance with decisions of the Superior Court.

8. In addition to the land owned by von Jess, acreage scattered throughout Littleton, Concord and Lancaster is under lease or sublease with Fieldstone Farm as "leasee" [sic], the entity under which the venture will operate. The plaintiff is the sole stockholder and president of Fieldstone Farm, Inc. and for purposes of this decision the corporate veil is pierced. First, the plaintiff, as sole stockholder and president of Fieldstone Farm, Inc. entered into a lease agreement as lessee, with Littleton House Nursing Home (Exhibit No. 8) on August 27, 1990. The 38.7 acres which is the subject of that agreement and located at 191 Foster Road, Littleton, is described as an apple orchard and sets forth certain directions as to Work, Time, Contract Payments, and Contract Documents. In particular the lease states that the lessor (the Nursing Home) is bound to "manage and control [the tract] pursuant to conditions established in a certain Agreement, with the Town of Littleton, to keep the land open, to preserve open spaces, and to promote agricultural uses". Article 1 of the contract further states that "[t]he Contractor [unidentified but apparently Fieldstone] shall manage and control the above referenced premises in a manner harmonious with the land subject to the following requirements and conditions", (emphasis added), with such requirements and conditions thereafter enumerated.

9. A second lease (Exhibit No. 9) is between Fieldstone Farm, Inc., as lessee and Mountain Laurel Realty Company, as lessor, demising approximately one hundred acres on Shirley Road in Lancaster and signed by the plaintiff on May 15, 1990. The lease states that the land is "leased for horticultural purposes". Further, in Article I thereof, "Fieldstone Farm, Inc. shall lease, manage and control the above mentioned parcel of land in a manner harmonious with the land subject to [certain] requirements and conditions" (emphasis added). Subsequent articles are substantially the same as in Exhibit No. 8, except additional provisions include the express identification of a "subcontractor" as "a person who has a direct contract with the Leasee [sic] to perform any of the Work at the site". Finally, the contract prohibits the assignment of "any interest in this Contract, and . . . the transfer of any interest in the same (whether by assignment or novation), without prior written permission from the Lessor". No evidence of any such assignment or transfer was offered.

10. Finally, a third agreement (Exhibit No. 10) dated May 1, 1990 is a standard form of commercial lease (in fact a sub-lease) between J. William Kenney of Concord, lessor, and F. David von Jess d/b/a Fieldstone Farm, Inc., lessee, for thirty five acres of "farm land" in Concord, the term of which is "concurrent with the lease of J. William Kenney from the owner"; otherwise there is no indication in the record or the sublease of the duration of the grant. The sublease is expressly for the "cultivation and harvesting of vegetables and related agricultural activities". Certain farm equipment was included in the lease.

11. Three separate personal services agreements between William J. Kenney and Fieldstone Farm were marked Exhibits No.11, 12 and 13 and are dated May 1, 1990. Exhibit No. 11 pertains to work to be performed by Kenney in relation to a property on Lowell Road in Concord and described in Exhibit No. 10. In particular, the contract provides:

Whereas William J. Kenney has rights to a certain Thirty Five acre parcel of real estate located at Lowell Road Concord, Massachusetts:

Now, therefore, William J. Kenney and Fieldstone Farm, Inc. agree as follows:

Article 1 The work

Fieldstone Farm, Inc[.] shall utilize the above-mentioned parcels [sic] of land. William J. Kenney shall manage and control the above referenced premises in a manner harmonious with the land subject to the following requirements and conditions:

(a) William J. Kenney shall maintain the premises for the purpose of cultivating and shall clear, fill, irrigate, spray, cultivate, trim and plant for the specific purpose of harvesting for Fieldstone Farm, Inc.; . . .

Article 3 Contract Payments

The terms of contract payments shall be made under a separate employment Agreement.

Article 4 Cultivation

4.1 Fieldstone Farms, Inc. shall supervise and direct the Work and shall be solely responsible for all means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract.

4.2 Fieldstone Farm, Inc. shall provide and pay for all labor, materials, tools, construction equipment, and machinery, water, utilities, transportation, and other fascilities [sic] and services necessary for the proper maintenance of the fields.

4.3 Fieldstone Farm, Inc. shall secure and pay for all necessary permits, fees, and licenses necessary for the execution of the Work.

4.4 Fieldstone Farm, Inc. shall give notices and comply with all laws, ordinances, rules, regulations, and orders of public authority bearing on the performance of the Work.

Article 5 Changes In the Work

Any change in the Work shall be determined by mutual agreement.

Mr. Kenney then signed as "Manager" and von Jess as President of Fieldstone Farms. Exhibits No. 12 (regarding an eleven acre parcel on Old Bedford Road in Concord) and 13 (pertaining to an approximately sixty acre tract at Hawthorne Lane in Concord, together with the structures thereon) are similar agreements, with one exception; appended to the agreement which is Exhibit No.11, is another agreement regarding rental payments associated with the Lowell Road parcel.

12. There are various types of farm stand operations throughout the Commonwealth with the evidence concentrating on those open year round. In order for an operation successfully to be opened year round it must be able to sell products purchased from third parties, because the growing season in the Commonwealth is limited at best. The four hundred to five hundred farm stands that exist in Massachusetts range in size from card table-like operations, to "huge farm stand [s]", as described by Douglas Roberts of the Massachusetts Department of Food and Agriculture and that about one hundred of these, with approximately $100,000.00 in annual gross revenues or better, are open year round. Of those the witness personally visited, none relied solely upon its own production; the owners turn to third parties and the wholesale market to make up the difference, for otherwise the enterprise would not be economically viable. Most of such farm stands sold cider, milk, butter, cheese, coffee (by the cup and in bulk) and other such dairy or farm products not in their natural state, and many sold baked goods; some sell handcrafts and kitchen appliances. Many of these same items, and those proposed to be sold by Fieldstone Farm, are sold by other farm stand operations in Littleton. While it was argued by counsel for the Town that these farms are afforded grandfather protection, the evidence was to the contrary; the Cataldo farm stand, relied on in the first instance by plaintiff, was started about 1986, and John Flagg, the owner of Nashobaside Farm in Littleton, testified that many items he now sells have been introduced in the past five to twenty years.

13. Chapter 808 of the Statutes of 1975 extended state protection to the use of land for the primary purpose of agriculture, horticulture or floriculture. As amended through the date of the hearing before the ZBA section 3 of Chapter 40A read as follows:

No zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture, or viticulture; nor prohibit, or reasonably regulate the expansion or reconstruction of existing structures thereon for the primary purpose of agriculture, horticulture, floriculture, or viticulture, including those facilities for the sale of produce, and wine and dairy products, insofar as the majority of such products for sale, based on either gross sales dollars or volume, have been produced by the owner of the land on which the facility is located, except that all such activities may be limited to parcels of more than five acres in area not zoned for agriculture, horticulture, floriculture, or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as one parcel. No zoning ordinance or by­law shall exempt land or structures from flood plain or wetlands regulations established pursuant to general law.

The General Court had already adopted and the Governor signed on December 8, 1989 a further amendment to section 3 which became effective ninety days later, on March 8, 1990. This amendment inserted "regulate or require a special permit for the use, expansion" in substitution for "regulate the expansion". More importantly here it substituted "provided that during the months of June, July, August and September of every year the majority of such products for sale, based on either gross sales dollars or volume" for the previous phrase "insofar as a majority of such products for sale". Section 3, in pertinent part, now reads:

No zoning ordinance or by-law shall regulate or restrict the use of materials, or methods of construction of structures regulated by the state building code, nor shall any such ordinance or by-law prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture, or viticulture; nor prohibit, or reasonably regulate, or require a special permit for the use, expansion, or reconstruction of existing structures thereon 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, the majority of such products for sale, based on either gross sales dollars or volume, have been produced by the owner of the land on which the facility is located, except that all such activities may be limited to parcels of more than five acres in area not zoned for agriculture, horticulture, floriculture, or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as one parcel. No zoning ordinance or by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to general law.

It is clear from the legislative history set forth in paragraph 13 that it is the policy of the General Court to encourage agriculture within the Commonwealth, reflecting in part the position of the Massachusetts Farm Bureau Federation, Cumberland Farms of Connecticut, Inc. v. Zoning Board of Appeal of North Attleborough, 359 Mass. 68 , 73-74 (1971), by promoting farm stands for the sale of the fruits thereof including produce, wine and dairy products. Local authorities are prohibited from unreasonably regulating, requiring a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture or viticulture or prohibiting, unreasonably regulating or requiring a special permit for the use, expansion or reconstruction of existing structures therein for the primary purpose of agriculture, horticulture, floriculture or viticulture including facilities for the sale thereof. The legislature does permit cities and towns to require that there be a minimum of five acres for such activities, but Littleton has not done so. It has, however, improperly authorized as agricultural uses only farms and greenhouses and relegated farms stands to an accessory use only. This was impermissible when the building inspector made his ruling and the ZBA held its hearing. Since the effective date of the most recent amendment to G.L. c. 40A, §3, the local provisions unquestionably contravene the legislative policy and cannot stand. The Commonwealth has preempted this field. Cumberland Farms of Connecticut, Inc. v. Zoning Board of Appeal of North Attleborough, supra at page 74.

The parties have sparred over the proper meaning of agriculture, horticulture, floriculture and viticulture as used in the statute with each concentration on the extent of agriculture. The counsel for the defendant attached certain definitions to his requests for findings of fact and rulings of law when the plaintiff has moved to have stricken. I take no action on such motion since the decided cases make it clear that judicial tools in this field include the dictionary definitions and the statutory use in other contexts. See Building Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 (1986); Town of Tisbury v. Martha's Vineyard Commission, 27 Mass. App. Ct. 1204 (1989). Moreover, there does not appear to me to be any serious question as to the activities which the statute protects and in which the plaintiff wishes to engage. The decided cases, even before the legislative revisions, had held that farm products did not have to be in their natural state. Tobe Deutschman v. Board of Appeals of Canton, 325 Mass. 297 , 301 (1950); Parrish v. Board of Appeals of Canton, 351 Mass. 561 (1967). In addition, the sale of products related to a nursery such as fertilizer has long been upheld. Needham v. Winslow Industries, Inc., 330 Mass. 95 (1953).

As the statutory protection now stands, the sale of products related to the four protected categories need reflect fifty percent production by the owner of the land (but not necessarily from the land on which the stand is located with land elsewhere leased as well as owned meeting the statutory requirement) only during the months of June, July, August and September. In the remaining eight months the products may be obtained elsewhere so long as they are agricultural, horticultural, floricultural or viticultural in nature. Baked goods and handcrafted items generally fall without any relationship to the ends sought to be promoted by the legislation, and they may not be sold of right unless, for example, they have a fruit component as many baked goods do or are handicrafts from natural products.

A question has arisen as to the propriety of using the second floor for offices of persons engaged in the protected activities. In today's world the word processors, computers and the like are necessary for success in the operation of even country oriented activities. Just as a 4,000 gallon fuel tank was deemed by the Appeals Court to be an integral part of a greenhouse in Town of Tisbury v. Martha's Vineyard Commission, supra at page 1205 and a saw mill of a tree farm, Roberts v. McNiff, Franklin Superior Court No. 89-004, the offices for executives of the agricultural, horticultural and floricultural operation are an integral part thereof and consequently permissible. Care, of course, must be taken that the operation must not blossom into an extensive retail operation divorced from its roots.

The parties filed extensive requests for findings of fact and rulings of law on which I have not specifically ruled in the light of my own.

On all the evidence therefore I find that the provisions of the Littleton Zoning By-law which limit a farm stand to an accessory use contravene the provisions of G.L. c.40A, §3 and are invalid; that in addition to farms and greenhouses presently permitted within the category of agricultural uses the latter and the other uses protected by section 3 must be broadly construed; that the farm stand proposed by the plaintiff falls within the statutory protection, including the offices therein, and the proposed stock for sale so long as it has a protected component; and that only during the months of June, July, August and September inclusive need the plaintiff produce fifty percent thereof based on the statutory criterion.

The plaintiff in his brief has requested the award of costs pursuant to the provisions of G.L. c. 40A, §17, but a separate motion should be marked up for argument if the plaintiff still wishes to push this position.

Judgment accordingly.