NANCY E. TETI, as TRUSTEE of COOLIDGE STREET REALTY TRUST, and JENNIFER HAWKINS v. THE TOWN OF SHERBORN, [Note 1] MICHAEL S. GIAIMO, et al., as MEMBERS of the ZONING BOARD OF APPEALS OF THE TOWN OF SHERBORN, JOHN A. KNAPP, JR., and KATHERINE M. KNAPP.

These cases involve two separate appeals from a decision of the Town of Sherborn’s Zoning Board of Appeals (ZBA) involving certain activities at Sweet Meadow Farm in Sherborn (Decision). The individual non-municipal parties include the owners of the farm and their abutting neighbors. In the Land Court Case (09 MISC 414330), Nancy E. Teti and Jennifer Hawkins, abutters to Sweet Meadow Farm, appealed a portion of the Decision that allows the continued operation of a farm stand at Sweet Meadow Farm. In the Superior Court Case (MICV 2009-04025), the owners and operators of Sweet Meadow Farm appealed a different portion of the Decision, which determined that the continued operation of an animal feed business at Sweet Meadow Farm is not allowed. [Note 2]

Nancy E. Teti, as Trustee of Coolidge Street Realty Trust (Teti), and Jennifer Hawkins (Hawkins) initiated the Land Court Case on October 16, 2009, by filing a complaint appealing the portion of the Decision upholding the Sherborn Zoning Enforcement Officer’s (ZEO) refusal to take enforcement action against the farm stand on Sweet Meadow Farm. Defendants in the Land Court Case chose not to file answers, as permitted under G. L. c. 40A, § 17.

The Superior Court Case was filed on the same day as the Land Court Case by John A. Knapp, Jr., Katherine Knapp, Albert Michaud, and Patricia Michaud d/b/a Sweet Meadow Farm (hereafter referred to as Sweet Meadow Farm or the Knapps [Note 3]). Hawkins is a named Defendant in the Superior Court Case because she was one of the applicants before the ZBA on the enforcement action and G. L. c. 40A, § 17 requires that she be named along the members of the ZBA. In its complaint, Sweet Meadow Farm challenges the portion of the Decision invalidating its operation of an animal feed business at Sweet Meadow Farm. The ZBA concluded that the ZEO should not have refused Hawkins’ request to enforce the Town of Sherborn Zoning By-Laws (By-Laws) with respect to the animal feed business because that operation is not a protected agricultural use under either the By-Laws or Section 3 of the Zoning Act, G. L. c. 40A. The ZBA found Sweet Meadow Farm to be in violation of the By-Laws and voted unanimously to issue a cease and desist order. Sweet Meadow Farm also asserted in its complaint that Hawkins is not an aggrieved person, the ZBA wrongfully concluded Hawkins had standing, and the ZBA, by allowing Hawkins’ appeal, usurped the authority of the Board of Health.

In response to Sweet Meadow Farm’s complaint in the Superior Court Case, Hawkins and the ZBA members filed separate answers. Hawkins asserted that she is harmed by the activities at Sweet Meadow Farm. The ZBA asserted several defenses, responding to Sweet Meadow Farm’s allegations regarding the standing issue, as well as the ZBA’s jurisdiction, and the substantive merits of the Decision.

On April 8, 2011, the Knapps filed a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(1) in the Land Court Case, and, along with the Michauds, filed a Motion for Summary Judgment in the Superior Court Case. [Note 4] The court denied both motions, finding that the Knapps failed to sufficiently rebut the presumption of standing for Hawkins and Teti. Specifically, the court held that the Knapps failed to rebut Teti’s claims of alleged harm resulting from the noise, odor and dust caused by the farm stand and animal feed business, and Hawkins’ claims of alleged harm resulting from the noise, odor and light from trucks. [Note 5] The court further ruled that it would not consider any harms alleged by Teti and Hawkins arising from farm activities not at issue on appeal or in the ZBA’s Decision, such as previous construction and operation of the horse ring, animal pens, and the Knapps’ removal of screening trees, none of which had been the subject of challenges timely filed by Hawkins or Teti.

The court viewed the parties’ properties on June 5, 2012 in the presence of the parties and counsel, and a two-day trial was held on July 25 and 26, 2012. The court heard testimony from Albert Michaud, a lessee and the operator of Sweet Meadow Farm; Stephen Knapp, the farm’s business manager; Walter Avallone, the ZEO and Building Inspector; Nancy Teti, Plaintiff in the Land Court Case; and Jennifer Hawkins, Plaintiff in the Land Court Case and Defendant in the Superior Court Case. In addition to the exhibits entered in evidence, several chalks were used at trial. The parties declined to have a court stenographer present. [Note 6]

Based on the credible testimony, exhibits, stipulations, and other evidence entered at trial, as informed by the court’s observations at the view, and the reasonable inferences drawn from the evidence, this court finds the following facts in addition to the facts previously established in this court’s Order Denying Motion to Dismiss and Order Denying Motion for Summary Judgment dated February 29, 2012 (Summary Judgment Order), and the facts agreed to by the parties in their Joint Pre-Trial Memorandum:

1. The Knapps own Sweet Meadow Farm, a 24-acre farm at 111 Coolidge Street in Sherborn (Property), which they purchased in 1999 (Sweet Meadow Farm or the Farm). The Farm is located in the Residence A District under the By-Laws.

2. In 2001, the Knapps received a building permit to construct a building on the Property (Building #1).

3. In 2006, the Knapps received a building permit and constructed a second building on the Property (Building #2). Thereafter, the Knapps moved the animal feed business into Building #2.

4. The Farm has approximately six acres of hay fields. TA v.1 at 10:54. In addition to Buildings #1 and #2, the Farm also includes a number of additional structures: a riding ring, animal pens, paddocks, a greenhouse and a barn.

5. In 2007, John Knapp and Albert Michaud began operating a farm stand out of Building #1, where they initially sold only eggs and Sweet Meadow animal feed products. TA v.2 at 9:24.

6. In 2009, the farm stand began to carry flowers, herbs and other plants such as bushes and small trees. Some plants were grown in the greenhouse at the Farm and some were purchased from a local nursery. TA v. 1 at 3:31.

7. Two houses are located immediately south of the farm buildings, at 99 Coolidge Street and 95 Coolidge Street. They are approximately 500 to 600 feet from Buildings #1 and #2. TA v. 1 at 12:00. Located between Buildings #1 and #2 and 95 and 99 Coolidge Street are several other structures, such as a riding ring, a barn and an animal pen (located directly next to 99 Coolidge Street). TA v. 2 at 3:36-37.

8. On April 5 and 6, 2009, Hawkins sent two letters to the ZEO requesting enforcement action against Sweet Meadow Farm. Hawkins specifically requested enforcement against, among other things, the farm stand and the animal feed business based on alleged zoning violations. Ex. 14, 15. The ZEO rejected these requests, determining, in relevant part, that farms are expressly entitled under G. L. c. 40A, § 3, to sell a certain percentage of produce from land not owned by the farm and still take advantage of the protection afforded agricultural uses.

9. Hawkins appealed the action of the ZEO to the ZBA on May 13, 2009. The question before the ZBA was whether the farm stand and the animal feed business qualified for the protections afforded by G. L. c. 40A, § 3 and By-Laws § 3.4.

10. G. L. c. 40A, § 3 states in relevant part:

“[n]o zoning ordinance or By-Law shall regulate or restrict the use of materials, or methods of construction of structures . . . or . . . prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture . . . nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture . . . provided that either during the months of June, July, August and September of each year or during the harvest season of the primary crop raised on land of the owner or lessee, 25 per cent of such products for sale, based on either gross sales dollars or volume, have been produced by the owner or lessee of the land on which the facility is located, or at least 25 per cent of such products for sale, based on either gross annual sales or annual volume have been produced by the owner or lessee of the land on which the facility is located and at least an additional 50 per cent of such products for sale . . . have been produced in Massachusetts on land other than that on which the facility is located . . . ” [hereinafter “the agricultural exemption”].

11. By-Laws 3.4 states:

“[u]ses that qualify for the exemption for parcels of 5 acres or more or 2 acres or more as described in Chapter 40A, sec. 3 relating to agriculture, horticulture, silviculture, viticulture, aquaculture or floriculture shall be uses allowed as of right provided that appropriate and reasonable screening of buildings and structures, such as hedges or fences, as determined by the Planning Board in light of the nature of the proposed use and the character of the surrounding area be provided. Such determination shall be made within 30 days based on a screening plan submitted as part of an application for a building permit, and referred to the Planning Board by the Building Inspector, in connection with any buildings or structure to be erected within 200 feet of a public way or lot line.”

12. The ZBA issued its decision on September 21, 2009. [Note 7] In its Decision, the ZBA concluded that it did not have enough evidence to determine whether 25 percent of the farm stand’s produce during the growing season was produced by Sweet Meadow Farm, as required by G. L. c. 40A, § 3. The ZBA could not reach a unanimous decision (voting 2-1 to reverse the ZEO). A unanimous vote is required in order to overturn the ZEO. Therefore, the ZEO’s decision not to take enforcement action against the farm stand was sustained.

13. In its Decision, the ZBA concluded the animal feed business was not operating for the primary purpose of agriculture because some of the animal feed ingredients were not grown on or made at Sweet Meadow Farm itself. The ZBA issued a cease and desist order requiring the Knapps to stop using Building #2 to package and sell products not “exclusively” produced on the Farm. [Note 8]

14. Both Teti and Hawkins allege they are harmed by the operation of the farm stand and the animal feed business due to the noise, fumes, dust and lights from trucks that service them and from other vehicles that are associated with those two operations at Sweet Meadow Farm. Teti and Hawkins claim standing based on these allegations of harm.

15. Hawkins hears trucks entering and exiting Sweet Meadow Farm while inside her home at 95 Coolidge Street. TA v. 2 at 2:43, 2:55.

16. She also occasionally notices diesel fumes and odors from trucks visiting the Farm. TA v. 2 at 3:37.

17. From her property Hawkins hears people and trucks braking and reversing related to all the activities at Sweet Meadow Farm, likely including activity related to the farm stand and the animal feed business.

18. Nancy Teti hears trucks entering and exiting Sweet Meadow Farm while inside her home at 99 Coolidge Street.

19. She also occasionally notices odors from trucks visiting Sweet Meadow Farm. TA v. 2 at 3:37.

20. Some trucks visiting Sweet Meadow Farm do not serve either the farm stand or the animal feed business. TA v. 1 at 12:07. The animal feed business attracts approximately five to seven trucks per month. TA v. 1 at 11:56, 2:09-15. The farm stand has no large trucks associated with it. TA v. 2 at 9:42.

Animal Feed Business

21. Albert Michaud and his employees package, sell and ship all Sweet Meadow animal feed products out of Building #2. The majority of animal feed products are formulas created by Patty Michaud. The products include hay products, grain pellets, apple sticks and, to a lesser extent, sales of other treat items, such as papaya and banana chips. TA v. 1 at 10:33-34.

22. This line of animal feed products includes “first-cut” and “second-cut” hay products. First-cut hay comes from the first harvest in May, and second-cut comes from all subsequent harvests beginning in July.

23. All first-cut hay sold during the growing season of June through September is hay harvested from the Farm during the same year. Albert Michaud often uses the Farm’s own hay from the previous year in sales of second-cut hay in June and July, and uses the Farm’s own hay in second-cut animal feed products sold in August and September. TA v. 1 at 10:59.

24. On occasions when there is not enough leftover second-cut hay in June and July, hay from outside vendors is used in the animal feed products.

25. Steven Knapp maintains the Farm’s financial records and is responsible for insuring the Farm’s compliance with the Commonwealth’s agricultural exemption. In so doing, assumes that all of the first-cut hay sold during the growing season is made of hay grown at the Farm.

26. Sometimes, the Farm does not have any of its second-cut hay left over in June and July. To account for this, Stephen Knapp assumes that half of the second-cut hay products sold in June, July, August and September are not grown on the Farm. TA v. 1 at 10:59.

27. The percentage of Sweet Meadow animal feed sales that are products made of hay grown on the Farm were 35.01% in 2007, 37.53% in 2008, and 37.99% in 2009. TA v. 1 at 3:18 – 29.

28. On average, Stephen Knapp’s above calculation (Fact Paragraph 27) is conservative as a measure of the percentage of all animal feed products produced at the Farm because in some years, there is enough second-cut hay grown on the Farm to supply the animal feed business in June and July. TA v. 1 at 10:59.

29. The animal feed business records for 2007 through 2009 show how much each type of hay product the animal feed business sold in each of the three years.

30. The animal feed financial records show that the percentage of sales attributable to “treat” products not made of hay or wheat is de minimis. TA v. 1 at 11:28.

Farm Stand

31. Some nursery stock sold at the farm stand is grown in greenhouses on-site, some at a greenhouse leased by the Knapps off-site, and some is purchased from a nursery. All plants are watered daily, pruned, repotted and fertilized on-site for some length of time before sale. The Farm staff removes withering leaves and rotates the plants in and out of doors to ensure adequate sun, shade and protection from the elements. In the fall, the Knapps cut back the perennials that have not been sold, bury them on-site and later dig them out and put them in a greenhouse to sell the following year. TA v. 1 at 3:35

32. Prior to 2009, the farm stand operated on an honor system, using a cash box for 2007 and 2008. No separate records were kept and annual sales amounted to less than $3,000.00.

33. The farm stand’s cash register tapes and ledgers from 2009 indicated that 49.93% of the stand’s sales during the 2009 growing season came from nursery stock and 47.9% came from eggs and Sweet Meadow animal feed products. [Note 9]

34. Prior to 2011, eggs and animal feed products were ‘booked’ into the same category by the farm stand’s cash register, so the Knapps had no means of estimating the breakdown of sales attributable to each.

35. In calculating percentages of products sold from the farm stand before the Farm utilized a sophisticated cash register, Stephen Knapp approximated the percentages of various items sold based on his observations. To be conservative, Mr. Knapp assumed all sales in this category were sales of animal feed products (further explaining that because virtually all eggs sold are produced by the Farm’s own chickens, attributing any sales to eggs would only increase the percentage of those products produced on the Farm). He concluded that 30% of the animal feed products sold were made up of hay grown on the Farm. This calculation was confirmed by data from 2011, when the Farm was utilizing a new cash register. He ultimately concluded that 30% of total sales were Sweet Meadow Products.

36. As of 2011, the cash register receipts allows the Farm staff to track precisely how much of each product has been sold. The data from this register showed that 32% of farm stand sales during the 2011 growing season were from products made from hay grown on-site. Based on this evidence and the testimony of Stephen Knapp regarding years prior to 2011, and drawing inferences from the 2011 receipts, the court finds that his calculations of sales percentages has been substantially consistent over the years in question.

* * * * *

Standing

The Knapps allege that Teti and Hawkins lack standing to challenge the ZBA Decision because they produced no evidence establishing aggrievement. [Note 10] The court’s Summary Judgment Order, resolved parts of this question. Teti and Hawkins alleged aggrievement from odor, noise, dust and light caused by activities conducted on and by Sweet Meadow Farm. The court narrowed the scope of the aggrievements alleged by Teti to noise, odor and dust caused by activities specifically tied to the farm stand and the animal feed business. The harms alleged by Hawkins were limited to noise, odor and light from trucks.

G. L. c. 40A, § 17 provides for judicial review of decisions of zoning boards of appeal and special permit granting authorities to the extent the appellant is a “person aggrieved” by the decision. Abutting landowners are “parties in interest” to zoning matters under G. L. c. 40A, § 11. As “parties in interest,” abutters are presumed to be aggrieved by a decision of a zoning board for purposes of G. L. c. 40A, § 17. See Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 127 (1999); Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 . 204, (1956). Therefore, as abutters, Hawkins and Teti are entitled to a presumption of standing. Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 257 (2003).

This presumption is rebuttable. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 212 (2003). One may effectively rebut an abutter's presumptive standing by presenting evidence to the contrary. Marinelli, 440 Mass. at 258. If a challenge to standing is supported by evidence, the abutter's presumption of standing disappears. Valcourt, 48 Mass. App. Ct. at 127-28; Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106 , 111 (1995). A defendant may either proffer evidence showing that the alleged basis for standing is unfounded or rely on the plaintiff’s lack of factual foundation for asserting the alleged aggrievement. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35-36 (2006) (stating that a defendant was not required to support a motion for summary judgment with affidavits attacking each of the plaintiffs’ claimed aggrievements, but could rely on the plaintiff’s lack of evidence, obtained through discovery, with equal force).

Once properly rebutted, the burden shifts to the plaintiff, and requires the plaintiff to establish with direct facts, and not by speculation or opinion, that his or her injury is special and different from the concerns of the rest of the community. Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 118-19 (2011). A plaintiff whose presumptive standing is rebutted will remain a party to the case if the plaintiff suffered a “definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). [Note 11] The plaintiff must demonstrate—and not merely speculate—that some legal right has been infringed. Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208 , 211 (2003). To meet the burden of proof, the abutter must "put forth credible evidence to substantiate his allegations." Marashlian, 421 Mass. at 721. [Note 12] This evidence must entail more than "unsubstantiated claims or speculative personal opinions." Denneny, 59 Mass. App. Ct. at 212.

If the evidence at trial introduced by the Knapps rebutted the presumptive standing enjoyed by Teti and Hawkins, the burden shifts to them to come forward with specific facts to support their status as aggrieved persons. Rattner v. Planning Bd. of West Tisbury, 45 Mass. App. Ct. 8 , 10 (1998). Here, Teti and Hawkins both contend they suffer the type of aggrievement recognized under the By-Laws, specifically injuries caused by noise, dust, light and odor. By-Laws § 1.3.

“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would be to deny standing, after the fact, to any successful plaintiff. Rather the plaintiff must put forth credible evidence to substantiate his allegations.” Kenner, 459 Mass. at 118 (citing Marashlian, 421 Mass. at 721 (italics added)). This turns standing into a question of fact for the court, and allows for a degree of discretion. Kenner, 459 Mass. at 119-20 (citing Paulding v. Bruins, 18 Mass. App. Ct. 707 , 709 (1984) (“[W]hether a party is ‘aggrieved’ is a matter of degree . . . and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule”)). The court must now determine whether the Knapps have sufficiently rebutted the presumption of standing and shifted the burden to Hawkins and Teti. If yes, the question becomes whether, based on all of the evidence without the benefit of the presumption, Hawkins and Teti have put forth credible evidence to substantiate their claims.

Noise

At trial, the Knapps challenged Teti and Hawkins’ presumption of standing relating to noise with direct testimony from Albert Michaud and Stephen Knapp, which this court credits. [Note 13] Mr. Michaud testified as to the minimal truck traffic directly attributable to the farm stand and the animal feed business. According to Mr. Michaud, at its busiest peak in 2009, the animal feed business drew approximately seven to nine trucks per week; currently, only five to seven trucks of various sizes visit the animal feed business per month. TA v. 1 at 11:56, 2:09-15. Mr. Michaud further testified that virtually no trucks visit the farm stand, as Stephen Knapp uses his personal pick-up truck to transfer the stand’s nursery stock and almost all other inventory is grown on or obtained from elsewhere on the farm. TA v. 1 at 9:42. Other trucks, such as a moving truck owned by Mr. Michaud, are used on the farm for activities unrelated to either the farm stand or the animal feed business, and would continue to operate on the farm even if the farm stand and animal feed business ceased operations. TA v. 1 at 12:07.

Mr. Michaud and Mr. Knapp further testified that traffic on Coolidge Street is generally heavy, with Mr. Michaud describing noise from the street as “constant.” [Note 14] TA v. 1 at 11:55-56. Both testified that traffic on Coolidge Street is heavy and consistent, but that noise from trucks entering the farm is “minimal,” as drivers are required to turn off their engines immediately upon entering the Property. TA v. 1 at 12:03; TA v. 2 at 4:02-4:04. Michaud and Knapp based their testimony on their own observations, and did not call a noise expert to testify.

Both Hawkins and Teti also testified at trial regarding their observations regarding noise caused by traffic to and from the Farm, and also did not call a noise expert. Both cited the beeping sound made by trucks traveling in reverse as the main noise harming them. [Note 15] Hawkins testified on cross examination that she currently observes trucks a few times a week, and hears them braking and reversing, and has noticed a “slight” decrease from 2009 to 2012. TA v. 2 at 2:43; 2:55:47. All parties based their testimony on their personal observations. Neither party produced a noise expert or other supporting evidence or documentation detailing the level of noise caused by trucks visiting the Farm generally or the farm stand or feed business specifically. Although Hawkins and Teti could not definitively distinguish between trucks visiting the farm stand and animal feed business and those servicing other areas of the Farm, Hawkins testified she sees trucks in the farm stand and animal feed business areas “frequently.” TA v. 2 at 2:43:50. Teti testified she does not usually notice the noise from general Coolidge Street traffic, but can hear the trucks backing up on the Farm. TA v. 2 at 3:39:40. While it is a close call, this court finds and rules that the Knapps failed to produce sufficient evidence rebutting the presumption of aggrievement from truck noise enjoyed by Teti and Hawkins. They therefore have standing and the court has jurisdiction to review the Decision of the ZBA.

Having found that both Teti and Hawkins have standing based on their presumption, which was not adequately rebutted with respect to noise, the court need not find that they have suffered harm from any other activity generated by the farm stand or the animal feed business. Nonetheless, the court briefly addresses below its analysis of the other harms, or lack thereof, presented by Teti and Hawkins. While a few of the issues were disposed of at summary judgment, there was testimony from both sides regarding them at trial.

Dust

Hawkins alleges that trucks visiting the Farm create dust during the summer months when entering and exiting the Property. The court has already disposed of this alleged aggrievement at summary judgment, ruling that recent paving of the driveway used by trucks to enter and exit the farm has reduced the amount of dust released to the air. In any event, Hawkins could not establish where the dust originates, but she conceded that the dust came from the animal pens and riding ring on the Farm, two facilities housing activities outside the scope of the ZBA Decision and this appeal. Therefore, this court finds that the Knapps rebutted Hawkins’ presumption of standing through her own testimony, and that she has not produced sufficient credible evidence with respect to the alleged harm from dust caused by the farm stand or the animal feed business to establish her standing.

Teti also testified at trial that she could not pinpoint which farm facility or activity most likely creates dust and stated that she has seen dust blown toward the farm stand from the animal pens and riding ring. Teti agreed that the dust probably originates from the animal pens and riding ring, or from a specific truck used by Albert Michaud for haying and general farm activities unrelated to the farm stand or animal feed business. Thus, the court finds and rules that the Knapps sufficiently rebutted Teti’s presumption of standing through her direct testimony, and like Hawkins, Teti has not produced sufficient credible evidence of harm from dust caused by the farm stand or the animal feed business to establish standing.

Odor and Lights

Once a presumption of standing has shifted, plaintiffs must bring forward credible evidence proving their alleged aggrievements constitute more than “unsubstantiated claims or speculative personal opinions.” Denneny, 59 Mass. App. Ct. at 212. Hawkins and Teti must show they suffer from more than a “minimal or slightly appreciable harm.” Kenner, 459 Mass. at 121. As previously mentioned, the court, at the summary judgment stage, narrowed allegations of harm from light to the light caused by trucks only. At trial, Hawkins testified that she has since noted a “distinct improvement” in the alleged harm caused by truck lights and that she sees truck lights only in winter, when it turns dark during business hours. She further testified that she only “occasionally” notices odors caused by trucks. Teti also testified that she notices bothersome odors only “on occasion.” TA v. 2 at 3:37.

Hawkins and Teti also provided only vague, speculative testimony as to frequency of disturbance from lights from trucks and other vehicles visiting the Farm. By its nature, this harm is restricted to non daylight hours and occurs only during part of the year, as the farm stand and animal feed business are open only during business hours. In addition, as was true generally with observations of trucks, neither Teti nor Hawkins established whether the trucks operating headlights were specifically visiting or servicing either the animal feed business or the farm stand, or were there for other purposes. Neither Hawkins nor Teti could provide definitive links between the trucks and the two activities at issue here. The infrequent lights and odors does not rise to the level of a substantial injury; therefore, the alleged aggrievement due to lights and odors fail to support standing. Of the four injuries alleged by Hawkins and Teti, they retain the presumption of standing regarding noise only. The Knapps rebutted the presumption of standing regarding dust, odor and light, and Hawkins and Teti failed to carry their burden of proof once the presumption vanished. [Note 16]

The Knapps Produced Sufficient Evidence That The Farm Stand and Animal Feed Business Fall Under The Agricultural Exemption

The Land Court Case and the Superior Court Case both stem from a decision of the ZBA. Hawkins and Teti, Plaintiffs in the Land Court Case, and the Knapps, Plaintiffs in the Superior Court Case, appealed pursuant to section 17 of the Zoning Act. G. L c. 40A, § 17 states: “[a]ny person aggrieved” by a zoning board of appeals decision may seek judicial review. The court “shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.”

In a G. L. c. 40A, § 17 appeal, the court employs a combination of de novo review of the evidence to establish the relevant facts and a deferential posture toward the board’s action in light of the facts found by the court, so long as the board has reasonably exercised its discretion. The court must give “a measure of deference” to a local board’s interpretation of its own zoning By-Laws and ordinances. APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000); Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228 , 231 (1992). This deference is due to a local zoning board’s special and unique knowledge of the “history and purpose” of the town’s By-Laws. Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (citing Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999)).

The appropriate deference to a board's construction is not, however, without limit. See, e.g., Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). An incorrect interpretation of a zoning provision by a local board or building inspector, for example, is not entitled to deference. Shirley Wayside Ltd. P’ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012). The task of a court in reviewing de novo a local zoning decision under G. L. c. 40A, § 17 is to determine the legal validity of the board’s decision based on the facts found by the court, giving no evidentiary weight to the board's findings. Roberts v. Southwestern Bell Mobile Sys.,Inc., 429 Mass. 478 , 485-86 (1999); Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558-59 (1954).

The reviewing court focuses solely on the “validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A board’s decision will not be overturned unless it is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)).

In its Decision, the ZBA ruled that the ZEO should not have refused Hawkins’ request that he enforce the zoning By-Laws with respect to the operation of the animal feed business on the Farm, and that neither the By-Laws nor G. L. c. 40A, § 3 provided a right to use a residentially-zoned property for the processing, storage, packaging or shipping of products not grown on the Farm. The Board issued a cease and desist order for the animal feed business. With respect to the farm stand, the Board was unable to reach a unanimous decision regarding the legality of the farm stand’s operation, as required in order to reverse a decision of the ZEO, so operation of the farm stand was permitted to continue. [Note 17]

Farm Stand

G. L. c. 40A, § 3 provides that no zoning ordinance or by-laws shall “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 unreasonably regulate, or require a special permit for the use, expansion or reconstruction of existing structure thereon for the primary purpose of agriculture, horticulture, floriculture, or viticulture.” The “obvious purpose” of this agricultural ‘exemption’ is to “promote agricultural use within all zoning districts in a municipality,” Bldg. Inspector of Mansfield v. Curvin, 22 Mass. App. Ct. 401 , 402 (1986), and the courts have interpreted this exemption broadly. Tisbury v. Martha’s Vineyard Commission, 27 Mass. App. Ct. 1204 , 1205 (1989).

Under the agricultural exemption, facilities selling produce, wine and dairy products are allowed, “provided that . . . during the months of June, July, August and September of every year . . . 25 per cent of such products for sale, based on either gross sales or volume, have been produced by the owner or lessee of the land on which the facility is located.” G. L. c. 40A, § 3. Albert Michaud and Stephen Knapp testified regarding the operations of the farm stand and introduced evidence demonstrating that at least 25 percent of the farm stand’s gross were from products produced by the Farm owners during the months required by statute. The court finds their testimony credible.

The Farm first began collecting money from farm stand sales in 2007. Mr. Michaud testified that the farm stand operated on a honor system basis, with customers putting money into a cash box. TA v. 1 at 2:27. For the 2009-2010 period, the Farm had a cash register, but it was not a sophisticated one. The Knapps introduced in evidence handwritten daily tabulations of the farm stand register tapes and there was considerable testimony, on both direct and cross, regarding the accuracy of the tapes. In 2011, a sophisticated cash register was installed with the capacity to categorize sales by product type. TA v. 1 at 3:36.

Nursery stock, eggs and Sweet Meadow products constitute the main product categories sold at the farm stand. In order to determine whether its sales fall under the agricultural exemption, the question becomes what products, if any, were “produced by the owner or lessee of the land.” G. L. c. 40A, § 3. If the nursery stock, eggs or Sweet Meadow products fall under this definition, then the farm stand is protected provided that at least 25 percent of its sales derive from those qualified products. The cash register records, together with the testimony, establish that the farm stand sales fall within the agricultural exemption.

G. L. c. 40A, § 3 provides that nursery stock will be considered produced by the owner or lessee of the land if it is “nourished, maintained and managed while on the premises.” Testimony by Mr. Knapp and Mr. Michaud described the nursery stock as including vegetable plants, woody plants (such as trees and bushes), some of which are purchased offsite and some which are grown onsite from seedlings. TA v. 1 at 3:31-42. Farm employees provide “constant maintenance” for this stock, in the form of pruning, repotting, watering, and fertilizing. Id. Unsold flowers are reburied in trenches in order to be resold the following year. While no precise definition of the nourishment and maintenance required under G. L. c. 40A, § 3 could be found in case law, the plain language of the statute itself implies that the actions of the Knapps constitute nourishment, maintenance and management. [Note 18]

G. L. c. 128, § 1 applies only as used in that chapter. G. L. c. 40A, § 3 expressly incorporates the definition of “agriculture” found in G. L. c. 128, but says nothing about adopting other definitions, such as nursery stock. A prior Land Court case, when faced with a similar issue, concluded that growing and keeping nursery stock for later sales, even if only kept onsite for one to six weeks, and nourishing and maintaining that stock as necessary, qualified for the agricultural exemption. Vieira v. Barry, 4 LCR 295 (1996). When applying the agricultural exemption under § 3, it appears clear that nursery stock will be considered “to be produced by the owner” if it is nourished, maintained and managed while on the premises, but does not have to be “planted in their ground or grown from seedlings” in order to qualify. Vieira, 4 LCR at 288 (italics added). Based on the testimony and the court’s observations at the view, this court concludes that the Sweet Meadow farm treatment of nursery stock over time constitutes nourishment, maintenance and management.

Having found that the nursery stock qualifies as products “produced by the owner” under § 3, the next question is whether gross sales of those products rise above the 25 percent threshold. This court finds that they do. Based on Mr. Knapp’s credible testimony, sales of nursery stock comprised 49.9% of total sales during the 2009 growing season. On those sales alone, the farm stand qualifies for the exemption.

Mr. Knapp testified in further detail about the two main product categories sold at the farm stand: nursery stock, and eggs and other Sweet Meadow products. Based on his experiences and observations at the farm, he concluded that the farm stand sales mirror those of sales from Building #2. Mr. Knapp tracks the sales, which consistently show each year that approximately one-third of sales of Sweet Meadow products are sales of hay grown on the farm. TA v. 1 at 3:38. Therefore, Mr. Knapp was able to testify that, in 2009, one-third, or 30 percent, of Sweet Meadow products sold at the farm stand are grown by on the farm itself. Id.

A more sophisticated cash register, installed in 2011, provided more detailed information as to the amount of Sweet Meadow products sold. In 2011, 32 percent of farm stand sales during the growing season were of products made from hay grown on-site. This detailed information, coupled with the credible testimony of Mr. Knapp regarding prior years, demonstrates that at least 30 percent of Sweet Meadow products and eggs sold at the farm stand were produced on-site. [Note 19]

Animal Feed Business

The ZBA concluded that the animal feed business did not fall under the agricultural exemption and issued a cease and desist order for its operation. The ZBA stated that neither the By-Laws nor G. L. c. 40A, § 3 provided for the use of a residentially-zoned property to process, package, store or ship products not grown on that property. In the ZBA’s view, the animal feed business did not qualify as “agricultural,” and it prohibited the Farm from using Building #2 “for the purpose of receiving shipments of, storing, processing, packaging, repackaging, or distributing agricultural or other products, except . . . such products which are produced exclusively on the subject property . . . .” Ex. 18 at 2 (Decision) (emphasis added). The ZBA also relied on Town By-Laws 1.5, defining “farm” as:

an establishment devoted (apart from residential use) wholly or predominantly to the commercial production of vegetables or other crops, fruit, dairy products, cattle, sheep, goats, poultry, eggs, maple products, or honey, or any combination thereof, including as an incident of the operation of such establishment the sale by its proprietor of its products only, either in their natural state or forming the major ingredients of processed commodities. The term "farm" does not include an establishment devoted (apart from residential use) wholly or predominantly to processing or distributing farm products dissociated from their production, and does not include a commercial greenhouse or fur farm or nursery or a piggery.

By-Laws 1.5 (emphasis added).

The ZBA relied on this definition to support its ruling that the processing of material not produced on the premises was not an approved farm use. Using this definition, the ZBA allowed the processing and packaging of produce exclusively grown on the Farm, but prohibited any processing of products grown elsewhere.

The Knapps allege the ZBA erred both in their interpretation of By-Laws 1.5 and in their reliance on Jackson v. Bldg. Inspector of Brockton, 351 Mass. 472 , 478 (1966) (finding that use of produce not raised on the farm itself nor intended for use on the farm falls outside the definition of “farming”). They argue the animal feed business falls under the agricultural exemption because it is a structure used for the primary purpose of commercial agriculture. They correctly note that Jackson involved an interpretation of a town By-Law defining farming and does not discuss the agricultural exemption. Jackson further states that “farming” is a more restricted term than “agriculture.” Id. at 475. Because an exemption for agriculture extends more broadly than one for farming, activities falling outside permissible farming uses may still qualify as agricultural. Id. at 475 (citing Lincoln v. Murphy, 314 Mass. 16 , 21 (1943)).

Therefore, a use may fall outside permissible farming uses under town By-Laws but still qualify as an agricultural use under G. L. c. 40A, § 3. The agricultural exemption incorporates the definition of “agriculture” found in G. L. c. 128, § 1A, which includes:

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 and 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 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. (italics added).

The activities of the animal feed business fall under “preparations for market,” as the Knapps process and package the hay grown on the Farm in Building #2. [Note 20] They also process and package to sell their own formulated animal feed products, which include hay grown both on and off-site. This is an integral part of the Farm and is necessary for the Farm’s economic survival. TA v.1 at 12:21. Under the agricultural exemption, the courts have allowed “many activities to be conducted on land which is being used primarily for agricultural purposes despite conflicting provisions of local zoning By-Laws.” Tisbury v. Martha’s Vineyard Comm’n, 27 Mass. App. Ct. at 1205. Structures “furthering an agricultural use” cannot be prohibited or unreasonably regulated when they are an “essential component” to the agricultural use of the property. Id. Here, the animal feed business is essential to the total operation of the farm and is covered under the agricultural exemption.

Because the court finds the animal feed business is engaged in commercial agriculture under G. L. c. 40A, § 3, it may continue to operate. Yet even if the animal feed business did not fall under commercial agriculture, it could still remain open, provided that it clears the statute’s 25 percent rule. The Town contends that the agricultural exemption applies only to farm stands and not to all structures or uses on a property. However, the clear language of the statute provides no such limitation. Instead, it only mentions “structures,” including “those facilities for the sale of produce, wine and dairy products.” G. L. c. 40A, § 3. Facility is a broad term, and the statute contains no other qualifiers or limitations. Limiting the statute to farm stands, without any such indicators from the statute’s language itself, contradicts the broad interpretation generally applied to the agricultural exemption. Tisbury, 27 Mass. App. Ct. at 1205.

At trial, Mr. Michaud and Mr. Knapp both testified as to the amount of products sold from Building #2. They included, for purposes of simplicity at trial, only those products made of hay harvested from Sweet Meadow Farm. All of the “first-cut” hay sold during the growing season was grown on the Farm. Approximately half of the “second-cut” hay was grown on-site. Based on their calculations, products made from hay grown on-site constituted over 35 percent of the Farm’s sales during the growing seasons 2007, 2008 and 2009. The court found their testimony credible, which places the Farm well over the 25 percent required under the exemption.

Lastly, the Town argues that the 25 percent rule also does not apply because the animal feed business sells additional products that the Town characterizes as non-agricultural, such as yogurt nibbles and papaya snacks. [Note 21] However, the simple fact that the animal feed business sells additional items not related to the produce grown on-site does not remove it from the protection of G. L. c. 40A, § 3. The primary purpose of Sweet Meadow Farm is agricultural. The definition of agriculture and agricultural products is interpreted broadly. Tisbury, 27 Mass. App. Ct. at 1205. A farm may sell a different category of agricultural product than the farm itself produces so long as the farm meets the percentage rule. Town of Natick v. Modern Continental Construction, 8 Mass. L. Rep. 524 (Super. Ct. 1998). [Note 22] Products not related to the produce of the Farm (the hay) can still qualify as agricultural products under G. L. c. 40A, § 3. Town of Natick, 8 Mass. L. Rep. 524 (Super. Ct. 1998) (stating that products unrelated to a farm’s produce, such as baked goods, breads, coffee and tea qualified as agricultural products within the meaning of the agricultural exemption and could be sold at a farm stand). The court in Town of Natick also allowed the sale of food, such as pizza and hamburgers, at an on-site pavilion located separately from the farm stand, finding those sales were related and incidental to the farm’s agricultural operations. [Note 23] At SweetMeadow Farm, a small quantity of products not produced from the hay grown on-site, such as the yogurt nibbles and related items, is sold. TA v. 1, at 11:28.

Accordingly, the court finds that both the farm stand and the animal feed business operated by the Knapps at Sweet Meadow Farm fall under the protection of the agricultural exemption, pursuant to G. L. c. 40A, § 3. The Decision by the Town of Sherborn Zoning Board of Appeals regarding the animal feed business, at issue the Superior Court Case, is overturned, as its interpretation of the agricultural exemption is based on legally untenable grounds. Its decision regarding the farm stand, at issue in the Land Court Case, is upheld to the extent that it upheld the ZEO’s refusal to take enforcement action against the farm stand.

Judgments to issue accordingly.