EILEEN WARD, DONNA MORRIS, DAVID BACKUS, EMERSON H. CHANDLER, JEFF FAULCONER, JAMES B. SHORE, and SCOTT WELLMAN v. RICHARD RAND, MARK J. RUTAN, GERALD B. BENSON, CHAN W. BYUN, and CRAIG R. GUGGER, as they are Members of and constitute the NORTHBOROUGH ZONING BOARD OF APPEALS, RICHARD A. LEIF, GEORGE E. PEMBER, LESLIE R. HARRISON, MICHELLE GILLESPIE, and DANIEL M. LEWIS, as they are Members of and constitute the NORTHBOROUGH PLANNING BOARD, SANTO ANZA, Individually and as Trustee of the 429 WHITNEY STREET REALTY TRUST, and S. A. FARM, LLC.

I. INTRODUCTION

Eileen Ward, Donna Morris, David Backus, Emerson H. Chandler, Jeff Faulconer, James B. Shore, and Scott Wellman ("Plaintiffs"), each individuals residing in or near Northborough, Massachusetts, filed the complaint in this case on March 15, 2011, appealing, pursuant to G.L. c. 40A, § 17, a decision of the Zoning Board of Appeals of the Town of Northborough ("Zoning Board"), which was filed with the Town of Northborough ("Town") Clerk's office on March 2, 2011 ("Zoning Board Decision"), and seeking review in the nature of certiorari, pursuant to G.L. c. 249, § 4, of a decision of the Planning Board of the Town of Northborough ("Planning Board") which was filed with the Town Clerk on February 25, 2011 ("Planning Board Decision"). The individual members of the Zoning Board and Planning Board are defendants in their official capacity ("Municipal Defendants"). Defendants Santo Anza, Individually and as Trustee of the 429 Whitney Street Realty Trust, and S.A. Farm, LLC ("Private Defendants") control or own a property located at 429 Whitney Street, Northborough, Worcester County, Massachusetts ("Property" or "locus"), [Note 1] the use of which is the subject of the Planning Board Decision and Zoning Board Decision.

The Planning Board Decision challenged by Plaintiffs approved a site plan for importing fill onto, clearing, and grading a portion of the Property, pursuant to Town of Northborough Zoning Bylaws ("Bylaws") Sections 07-03-050 and 07-09-10. This site plan set out a number of conditions said to prevent erosion and dust, to stabilize the graded area, and to help prevent the Private Defendants' activity from being a nuisance to neighbors. When the Planning Board Decision was issued a significant amount of filling, grading, and clearing already had been carried out by Private Defendants.

The Zoning Board Decision challenged by Plaintiffs found that: (1) the primary use of the Property, from the time Private Defendants purchased the Property and began operations until the time of the Zoning Board Decision, was not commercial agricultural use; (2) the proposed future use of the Property as a slaughterhouse or abattoir with livestock maintained on the Property would be considered commercial agricultural use; (3) the deposit of fill on the Property was not incidental and subordinate to an agricultural use; (4) the filling and grading operation was not otherwise permitted under the Bylaws; and (5) removal of the fill would result in additional noise, dust and offensive odor, leading the board to conclude that an order that Private Defendants engage in that fill removal would not serve the interests protected by the Bylaws; the Zoning Board Decision did however call for stabilizing slopes with the fill already on site, concluding that doing so would serve those interests. That work was allowed to proceed subject to certain conditions.

The Zoning Board Decision ordered the Town Zoning Enforcement Officer ("Town ZEO") to issue a Cease and Desist Order directing Private Defendants to stop importing fill to the Property, and required Private Defendants to meet with the Town ZEO prior to regrading the existing fill, and to file a detailed as-built site plan to be approved by the Town ZEO before commencing regrading work. The Town ZEO did issue a Cease and Desist Order, which was appealed by Private Defendants pursuant to G.L. c. 40A, §§ 8 and 15. The Zoning Board upheld the Cease and Desist Order in a decision filed with the Town Clerk on June 8, 2011. Private Defendants then appealed the June 8, 2011 decision of the Zoning Board upholding the Cease and Desist Order as a claim in a separate case filed with the Land Court pursuant to G.L. c. 40A, § 17. That claim was consolidated for all purposes with this case, as set out below.

Plaintiffs seek to overturn the Planning Board Decision and that part of the Zoning Board Decision which did not require the Private Defendants to (1) remove all the fill, (2) cease all processing of earth materials, and (3) return the Property to the condition it was in when it was purchased by the trustee of the 429 Whitney Street Realty Trust ("Realty Trust").

Private Defendants, by cross-claim against the Municipal Defendants, seek to overturn that part of the Zoning Board Decision that found the filling and grading operation was not agricultural in nature and entitled to protection under G.L. c. 40A, § 3 or was not incidental and subordinate to agricultural use of the Property. Private Defendants seek to qualify the filling and grading as entitled to the protections of that section of the Zoning Act, and so entitled not to follow fully a variety of regulations under the Bylaws. Private Defendants also seek to overturn the Cease and Desist Order issued by the Town ZEO requiring Private Defendants to stop importing fill material. Lastly, Private Defendants assert as affirmative defenses that because Gerald B. Benson, a member of the Zoning Board, had a financial conflict of interest, his participation in the Zoning Board Decision invalidates that decision because it violated G.L. c. 268A and Articles I, X, XII, XXIX, and XCVII (1, 10, 12, 29, and 97) of the Massachusetts Declaration of Rights in the Massachusetts Constitution. [Note 2]

II. PROCEDURAL HISTORY

On April 13, 2011 the court held a case management conference during which all parties were represented by counsel. During the conference the court set forth a schedule for the case: discovery was to close on September 30, 2011 and the first dispositive motion, if any, was to be filed by October 31, 2011.

On May 16, 2011, Private Defendants filed a motion to amend their answer to add a cross-claim. The court heard that motion on June 14, 2016 and allowed it over the opposition of Plaintiffs and Municipal Defendants. The court also allowed, as unopposed, the motion of Private Defendants to extend the tracking schedule. The court extended the close of discovery to January 15, 2012, with the first dispositive motion, if any, to be filed by February 15, 2012.

On June 16, 2011, Miscellaneous Case No. 11 MISC 449309 was filed in the Land Court by the Private Defendants and by Santo Anza as Trustee of the 0 Whitney Street Realty Trust, against the Zoning Board. Plaintiffs in that case (some of whom are the Private Defendants in this case) appealed, pursuant to G.L. c. 40A, § 17, two decisions of the Zoning Board, both of which were filed with the Town Clerk on June 8, 2011. Count I was the appeal of the Zoning Board decision upholding the Cease and Desist Order which the Town ZEO had issued pursuant to the earlier Zoning Board decision filed with the Town Clerk on March 2, 2011--the decision being appealed in this case. Count II was an appeal of the Zoning Board's decision to uphold two Use Determination letters issued by the Town ZEO on March 18, 2011 and April 12, 2011. Private Defendants and the 0 Whitney Street Realty Trust sought a Use Determination letter affirming their right to use the Property (and another adjacent property owned by the trustee of the 0 Whitney Street Realty Trust) as a "contractor's yard," as defined by Section 07-05-020(I)(6)(c) of the Bylaws. The Town ZEO in the first Use Determination letter stated that, while storage of mulch, loam, stone, and firewood are uses allowed of right in a "contractor's yard" on the properties, the processing of soil and creation of firewood, mulch, and wood chips are not allowed uses, nor is the storage of salvage materials. The second Use Determination letter from the Town ZEO stated, in response to a request for an amended Use Determination Letter based on Private Defendants' assertion that firewood, mulch, wood chips, and processed soil are a fabrication of "sub assemblies," as that term is defined in the Bylaws, that these uses are not "sub assemblies" and are not allowed as part of a "contractor's yard."

A case management conference was held in this related case on July 20, 2011, during which Count I of Case No. 11 MISC 449309 was consolidated with this case. The remaining aspect of the 449309 case, at that point only consisting of Count II, was set by the court to be heard on a schedule parallel to the earlier-filed case, for the sake of judicial economy, given the similarity of the parties and the issues in the related actions.

On September 9, 2011 the Commonwealth of Massachusetts brought Case No. 1184-CV- 03532 in Suffolk Superior Court ("Civil Superior Court Case") as a civil enforcement action against the Private Defendants, alleging that Private Defendants' use of the Property violated environmental laws governing solid waste and air pollution.

On October 4, 2011 Private Defendants brought Miscellaneous Case No. 11 MISC 454179 in the Land Court, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the Zoning Board which was filed with the Town Clerk on September 22, 2011. This Zoning Board decision upheld a Cease and Desist Order issued by the Town ZEO on July 15, 2011, by which Private Defendants were ordered to stop any use of the Property as an unlicensed compost or solid waste facility, and were prohibited from further importation of food and paper waste onto the Property pursuant to Section 7-03-030(B)(3) of the Bylaw. The Zoning Board not only upheld the Cease and Desist order, but, pursuant to authority under G.L. c. 40A, § 14, ordered that all solid waste, as defined by 310 CMR 16.02 (including food waste, vegetable waste, cardboard waste, and yard waste), be removed from the site within forty-five days.

On October 28, 2011 the Suffolk Superior Court issued a preliminary injunction in the Civil Superior Court Case. The injunction required that the Private Defendants: cease and desist from accepting any solid waste, compostable materials, and wood waste; not move or remove any of the solid waste or compost unless authorized by the Massachusetts Department of Environmental Protection ("DEP"); not operate any vehicle, including heavy equipment, in and around the piles of solid waste; provide such access to the Property as DEP deemed necessary; comply with the Animal Health Order issued by the Massachusetts Department of Agricultural Resources ("DAR"); separate animals on the site and keep them in adequate enclosures; and provide such access to DAR as it deemed necessary to ensure compliance with the Animal Health Order and to inspect the condition and care of such animals.

On November 16, 2011 this court held a status conference in this case and Case No. 11 MISC 449309, along with a case management conference in Case No. 11 MISC 454179. During the conference the parties agreed, subject to approval by the Municipal Defendants, that the three Land Court cases (which, to the extent not already consolidated, were to proceed parallel to each other), should be stayed pending the outcome of the Civil Superior Court Case. The court ordered the parties to file a joint motion to stay these cases, with a joint stipulation in lieu of an injunction regarding all matters not covered by the preliminary injunction which the Suffolk Superior Court recently had issued.

On December 12, 2011 the court ordered the parties in all three Land Court cases to advise the court whether a motion to stay would be filed, and whether it would be assented to by all parties.

On December 14, 2011 the Commonwealth initiated Case No. WOCR2011-01264 in Worcester Superior Court ("Criminal Superior Court Case") as a criminal action against defendant Santo Anza individually.

On December 16, 2011 the Municipal Defendants filed an opposition to Plaintiffs' (about to be filed) Motion to Stay, but only as to Case No. 11 MISC 449309.

On December 19, 2011 the parties filed a Motion to Stay jointly submitted by Plaintiffs and Private Defendants, which was then scheduled for hearing in January of 2012.

On January 10, 2012, following hearing on the Joint Motion to Stay, the court, over the objection of the Municipal Defendants, ordered that all proceedings in all three Land Court cases be stayed until June 30, 2012. The court concluded that the injunction issued by the Suffolk Superior Court and the joint stipulation filed by the parties to the three Land Court cases operated to prevent any activity which might result in material irreparable harm to any party, and that the Civil Superior Court Case might reduce or eliminate the need for the court to decide issues contested in these cases. The court ordered the parties to file regular reports on the status of the Civil Superior Court Case during the six month stay.

On April 2, 2012 the parties filed a joint written report in which they stated that the Private Defendants had been defaulted in the Civil Superior Court Case "due to Fifth Amendment issues arising out of the pending criminal complaint in Worcester Superior Court," but that settlement discussions were ongoing (the parties disagreed about whether the material terms of a settlement had been reached). The parties further reported that an arraignment and pretrial conference had been held in the Criminal Superior Court Case.

On June 19, 2012 the court held a telephone conference in this case and the two related Land Court cases. The court ordered that the stay and the stipulation in lieu of injunction remain in effect unless lifted by the court on its own motion or on motion of a party. The court ordered the parties to file a joint report on the status of the Superior Court cases by August 15, 2012, at which time, unless the court ordered otherwise, the stay on Case No. 11 MISC 449309 (but only that case) would be lifted. The Municipal Defendants were to include in the report their view about whether additional discovery was needed before the filing of a motion for summary judgment in Case No. 11 MISC 449309.

On July 18, 2012 the Municipal Defendants filed a supplemental report on the stay, which stated that the Worcester Superior Court had scheduled a final pre-trial conference in the criminal case for September 17, 2012, and the trial itself was scheduled to begin on October 15, 2012.

On August 15, 2012 the parties filed a joint report stating that a stay had been ordered in the Civil Superior Court Case until September 20, 2012. The parties reiterated the scheduled dates for the pre-trial conference and the trial start date in the Criminal Superior Court Case, and sought to have the stay in the Land Court cases remain in place until the earlier of October 19, 2012 or the resolution of the Civil Superior Court Case. Although proceedings progressed in the Superior Court, no further status report was filed by any party in the this court until May of 2015.

By an instrument of taking dated October 24, 2012, the Town Treasurer and Collector of Taxes took the Property for nonpayment of property taxes. On October 8, 2013, the Town filed with the Land Court a complaint to foreclose the Trust's right of redemption in the Property, which is currently pending as Land Court Case No. 13 TL 147389.

The Criminal Superior Court Case, following a conviction, concluded with a Third Amended Sentencing Order dated May 1, 2014. That order required, among other things, that defendant Santo Anza remove from the site all solid waste, under the supervision of DEP and according to a plan approved by DEP; the order placed Santo Anza on probation and prohibited Santo Anza from engaging in "any activity, transaction or operation that involves processing, storing, transferring, treating or disposing of solid waste or any operation that commercially recycles, composts, or converts recyclable or organic materials" during the term of his probation.

The Civil Superior Court Case went to final Judgment on June 20, 2014. The judgment requires Private Defendants to: contain all livestock in adequate fencing; separate poultry from swine; limit any produce and bakery goods brought onto the property as animal feed to an amount proportional to the number and type of animals on the property; and offload and store any produce and baked goods in a feed storage area completely separated from any animal enclosures.

On May 20, 2015 the Municipal Defendants filed a written report on the status of the stay, which informed the court of the disposition of the two Superior Court cases, and requested a status conference. On July 14, 2015 counsel for the parties appeared for a status conference during which they reported that, notwithstanding the conclusion of the Superior Court matters, there remained in the three Land Court cases issues requiring resolution by the court.

On September 3, 2015 the court held a status conference in the three related Land Court cases. Counsel reported that the parties had agreed to dismiss Case No. 11 MISC 449309. The parties agreed that the issue raised in Case No. 11 MISC 454179 (whether or not accepting produce and other foodstuffs to feed the animals is allowable as a zoning matter under the Bylaws) was not ripe for adjudication because DAR and DEP then were overseeing the importation onto the Property of all foodstuffs used to feed the livestock, pursuant to the orders entered in the Superior Court cases. The parties now requested that this case move forward toward trial if they could not arrive at a settlement. The court ordered the parties to proceed in good faith toward a consensual resolution of all three cases, and extended the discovery deadline in this case to November 16, 2015.

On September 8, 2015 Land Court Case No. 11 MISC 449309 was dismissed by stipulation signed by counsel for all parties pursuant to Mass. R. Civ. P. 41 (a) (1) (ii). The stipulation stated that the matter was moot because Private Defendants no longer wished to engage in the activities that were at issue in that case.

On September 30, 2015 Plaintiffs filed a motion to substitute a new plaintiff for Emerson H. Chandler following the filing by Plaintiffs of a suggestion of his death. Plaintiffs showed that Karen L. Chandler, spouse of Emerson H. Chandler, was the sole owner of the property once held by that now deceased plaintiff. The court allowed this motion without objection on October 14, 2015.

On December 18, 2015 the court held a status conference in this case and in Case No. 11 MISC 454179. The court extended discovery in this case until January 15, 2016. The court ordered the parties to schedule a pretrial conference in this case, and to file a status report on Case No. 11 MISC 454179 by January 15, 2016.

On February 23, 2016 the court held a pretrial conference in this case. During that conference the court set aside three days for trial and scheduled a view of the locus. The parties in that conference agreed through their counsel that the appeal of the Planning Board Decision would be based on an agreed record and according to the standard of review applicable to certiorari cases filed under G.L. c. 249, § 4.

On May 31, 2016 the court heard Plaintiffs' motion in limine, which the court allowed over the objection of Private Defendants. As a result of the allowance of that motion, the court precluded Private Defendants from presenting expert testimony from four witnesses, due to the manner and timing of disclosure, the age of the case, and proximity to the date of trial. The court, however, allowed these witnesses to testify as fact witnesses at trial.

On June 13, 2016 the court took a view of the Property in the presence of counsel and several of the parties and their representatives.

Trial opened in this case June 15, 2016 and resumed on June 16, 2016 for further taking of evidence. Court reporter Pamela St. Amand was sworn to record the testimony at trial and produce a transcript of the proceedings. Prior to opening arguments, and the taking of evidence, the parties by their counsel filed a written stipulation that the Planning Board Decision would be reviewed according to the standard of review applicable to certiorari cases filed under G.L. c. 249, § 4; the court accepted that stipulation along with the agreed record counsel submitted. Five witnesses were called at trial: Scott Wellman, Karen Chandler, James Shore, Ralph Grieco, and Santo Anza. Forty exhibits were entered into evidence, some in subparts, all as reflected in the transcript.

At the conclusion of the taking of evidence on June 16, 2016, the trial was suspended to allow the parties an opportunity, after the transcripts of the evidentiary portion of the trial were received, to submit proposed findings of fact and proposed rulings of law supported by memoranda of law. The court received the transcripts on July 25, 2016, and gave the parties notice that post-trial filings were to be submitted by August 25, 2016. On August 12, 2016 the Municipal Defendants filed an assented to motion for an extension of time to file post-trial documents, which the court allowed. The court ordered the parties to file post-trial papers by September 20, 2016. Trial resumed for closing arguments on October 18, 2016. Following closing arguments, the parties were informed that, upon receipt of the transcript, the case would be taken under advisement. The court has received the transcript. I now decide the case.

On all of the testimony, exhibits, stipulations and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, proposed findings of fact, proposed rulings of law, and arguments of the parties, I find the following facts and rule as follows.

III. FINDINGS OF FACT

1. Plaintiff Eileen Ward ("Ward") resides at and owns the property known as and numbered 47 Coolidge Circle, Northborough, Worcester County, Massachusetts.

2. The Plaintiff Donna Morris ("Morris"), together with her husband Plaintiff David Backus ("Backus"), reside at and own the property known as and numbered 58 Coolidge Circle, Northborough, Worcester County, Massachusetts.

3. Plaintiff Karen L. Chandler ("Chandler") resides at and owns the property known as and numbered 189 Crosby Road, Berlin, Worcester County, Massachusetts, which directly abuts the Property. Karen L. Chandler is the widow of Emerson H. Chandler who was an original plaintiff in this case.

4. Plaintiff Jeff Faulconer ("Faulconer") resides at and owns the property known as and numbered 82 Coolidge Circle, Northborough, Worcester County, Massachusetts.

5. Plaintiff James B. Shore ("Shore")resides at and owns the property known as and numbered 34 Coolidge Circle, Northborough, Worcester County, Massachusetts.

6. Plaintiff Scott Wellman ("Wellman") resides at and owns the property known as and numbered 67 Coolidge Circle, Northborough, Worcester County, Massachusetts.

7. The members of the Zoning Board that rendered the Zoning Board Decision, who are joined in this action in their capacity as Zoning Board members, are Richard Rand, Mark J. Rutan, Gerald B. Benson, Chan W. Byun, and Craig R. Gugger, all of whom live in Northborough.

8. The members of the Planning Board that rendered the Planning Board Decision, who are joined in this action in their capacity as Planning Board members, are Richard A. Leif, George E. Pember, Leslie R. Harrison, Michelle Gillespie, and Daniel M. Lewis, all of whom live in Northborough.

9. The Defendant Santo Anza, as Trustee of 429 Whitney Street Realty Trust, holds title to the Property known as 429 Whitney Street, Northborough, Massachusetts.

10. The Defendant Santo Anza ("Anza") resides at 25 Reservoir Street, Northborough, Massachusetts.

11. The Defendant S.A. Farm, LLC ("S.A. Farm") is a Massachusetts limited liability company having a principal address of 38 Turnpike Road, Southborough, Worcester County, Massachusetts. Anza is the Manager of S.A. Farm, LLC.

12. On August 4, 2009, Anza, as Trustee of the Realty Trust, purchased the Property for $600,000.00.

13. The Property is that described in a deed, dated July 29, 2009, and recorded with the Worcester (South) District Registry of Deeds on August 11, 2009 in Book 44712, Page 111.

14. The Property has approximately 250 feet of frontage on Whitney Street and contains approximately 15.7 acres of land.

15. The Property is situated in the Industrial Zoning District as defined by the Bylaws. A significant portion of the Property also is within the Groundwater Protection Overlay District as defined by the Bylaws.

16. Beginning in August 2009, Anza, individually or as Trustee of the Realty Trust or as Manager of S.A. Farm (hereinafter referred to, alternatively as appropriate, in all three capacities) caused farm animals to be brought onto the Property and caused the vegetation to be cleared and removed from approximately eight acres of the Property. In doing so, Anza cleared, over the course of several months, an area greater than 20,000 square feet. There is no testimony that I credit which establishes with any precision the number of animals kept on the Property from 2009 to present.

17. On September 8, 2009, Anza made the filings with the Commonwealth to form S.A. Farm, LLC.

18. I credit the testimony of Anza that it was his intention when he purchased the Property to establish a livestock operation on at least part of the Property, and that at the time of trial he still intended to pursue a livestock operation on the Property.

19. Anza caused the transportation and deposit of at least 93,490 cubic yards or 158,933 tons of earth materials or fill onto the Property.

20. The earth moving and filling operation began in October 2009 and was discontinued in the fall of 2010.

21. The fill deposited on the Property during this time period covers an area of approximately six acres and greatly raised the elevation of this area--by approximately 20 feet.

22. During the earth moving and filling operation, five large dump trucks of earth materials were traveling to the Property on a daily basis, each making up to fourteen trips per day.

23. In addition to dump trucks, there were two excavators, a bulldozer, two screeners, two forklifts, a trommel (used to separate earth materials of different sizes), a front-end loader, a conveyor belt and other heavy equipment on the Property, all being used to carry out the filling and grading operation. This equipment was stored on site when it was not in use. There is no evidence I credit that this equipment was used to manage livestock.

24. Some of this equipment was used to process both the soil already on the Property and the earth materials transported onto the Property, to extract cobblestones for sale.

25. The fill deposited on the Property between September, 2009 and July, 2010 was excavated and transported from, among other places: (1) Davis Street School Project, 35 Davis Street, New Haven, Connecticut; (2) A Street Wastewater Management Facility, Framingham, Massachusetts; (3) University High School Project, 351 Mark Twain Drive, Hartford, Connecticut; and (4) Albert Sherman Center, University of Massachusetts Medical School, Worcester, Massachusetts.

26. I credit the testimony of both Wellman and Shore that during the year or so when the fill operation was ongoing, up to a dozen dump trucks would sometimes stop along Whitney Street, idling and waiting for their opportunity to enter and dump on the Property the material they carried. I credit the testimony of Shore that he was bothered by the strong smell and fumes from these trucks when passing nearby them.

27. I credit the testimony of Wellman that certain noises from the dumping and related activities could be heard within his house, and be heard in such a way that it was both loud and disturbing inside his house. I credit the testimony of Wellman that the noises of dumping rocks and gravel, the noise of the back gate of dump trucks closing, and the noise of the earth processing which removed the cobblestones from the soil using a trommel, all were clearly audibly identifiable to him, loud, and disturbing.

28. I credit the testimony of Shore that the noise from the trucks dumping material was very loud and jarring both inside and outside of his residence.

29. I credit the testimony of Shore that he sometimes works remotely from home, and that due to the loud noises from the trucks dumping fill and the smell emanating from the Property it was difficult for him to work inside his house while the filling and grading operation was ongoing.

30. I credit the testimony of Shore that while the filling and grading activity was occurring on the Property dust frequently settled on his house, car, and outdoor furniture.

31. I credit the testimony of Wellman, Chandler, and Shore that a strong odor that resembled the odor of garbage could be smelled both just outside and within each of their residences while the filling and grading operation was occurring.

32. I credit the testimony of Wellman that a noticeable increase in insects was observed and the testimony of Shore that a noticeable increase in rodents was observed in and around their respective residences after the fill operation began.

33. I credit the testimony of Chandler that prior to 2009, Cooledge Brook, which runs from the Property to her abutting property, was clear and contained aquatic life, including Eastern Brook Trout, which her customers liked to feed. I further credit her testimony that in 2010, several months after the fill operation began, Cooledge Brook's water for the first time appeared cloudy, and aquatic life no longer was present in the brook. I further credit Chandler's testimony that a pond on her property which is fed by the brook also no longer has aquatic life in it, and that she has been unable to reestablish trout in her pond.

34. I credit the testimony of Chandler that after the fill operation began customers visiting her property to purchase Christmas trees were far less interested in walking the grounds and enjoying the property than they were before the fill operation began.

35. I credit the testimony of Chandler that livestock from the Property have entered her property, and that twice she spoke with Anza while he was recovering livestock from her property.

36. I find that the filling and grading operation and the processing of earth materials on the Property adversely materially adversely affected the Plaintiffs in ways that are not experienced by the community at large.

37. I find, based on Anza's testimony, that just prior to the time of trial he received notice from DEP announcing that they were investigating the water quality in Cooledge Brook.

38. I credit the testimony of Ralph M. Grieco ("Grieco"), accountant for Anza, that in 2009, the Property generated $76,706.00 in revenue to S.A. Farm, LLC, of which $75,425 was payment for depositing earth material onto the Property.

39. I credit the testimony of Grieco that in 2009 the Property generated $1,282 in revenue from the sale of livestock.

40. I credit the testimony of Grieco that in 2010, the Property generated $472,389.00 in revenue to S.A. Farm, LLC, of which $343,517.00 was payment for depositing earth material on the Property.

41. I credit the testimony of Anza that most of the remaining $128,872.00 was from the sale of cobblestones, and that very little of S.A. Farm, LLC's 2010 revenue came from the sale of livestock.

42. I credit the testimony of Anza that approximately 1,213 tons of cobblestones were sold from the Property in 2009 and 2010.

43. I credit the testimony of Anza that many of the cobblestones were salvaged from the Property, but that some of the cobblestones were extracted from the fill material brought onto the Property.

44. I credit the testimony of Grieco that Anza individually held controlling interests in two other business entities, Apple D'or Maintenance and Apple D'or Recycling, and that his spouse Lisa Anza owned Apple D'or Tree, a landscaping company. I credit the testimony of Grieco that Apple D'or Tree was paid for use of equipment and for labor with the revenues generated by S.A. Farm on the Property.

45. I credit the testimony of Grieco that Anza consulted with him prior to purchasing the Property, that Anza announced to Grieco Anza's intention to create a livestock operation on the Property, and also announced his intention to bring initially a large amount of fill onto the Property, which would generate revenue.

46. The properties owned by Ward, Morris, Backus, Faulconer, and Wellman are in an area of the Town zoned for Single-Family Residential use and are separated from the Property by a railroad right-of-way and a strip of land owned by the Massachusetts Water Resources Authority ("MWRA Land").

47. A small portion of Chandler's land, which is the portion that abuts the Property, is in the Industrial zoning district.

48. Shore's residence is located is in a Single-Family Residential zoning district and is separated from the Property by a railroad right-of-way and the MWRA Land. Shore also owns an unimproved parcel, to which he has an easement from his residence, that is separated from the Property only by the railroad right-of way, which is less than 300 feet in width.

49. By letter to William S. Farnsworth, the Town ZEO, dated September 10, 2010, Ward requested, individually, and on behalf of other concerned residents of Northborough, that the Town ZEO order Private Defendants to cease and desist from conducting the filling and grading operation on the Property, which Ward alleged was in violation of the Bylaws.

50. On October 1, 2010 Private Defendants submitted an Application for Site Plan Approval to the Town ("Site Plan Application"). The Site Plan Application states that "[t]his request for a limited Site Plan Approval results from discussions and correspondence between the Applicant and representatives of the Town" and that "[t]he proposed work is the completion of the grading and surface stabilization work that is ongoing to prepare the site for the agricultural use."

51. On October 13, 2010, the Town ZEO sent a letter to Ward in which he stated that the Town had directed the owner of the Property to file an application with the Planning Board for site plan review. The Town ZEO did not issue a Cease and Desist Order.

52. On October 14, 2010, Ward, Wellman, Faulconer, Robert Rosenberg of 74 Coolidge Circle, Northborough, and Donald Hamman, of 20 Morse Circle, Northborough, sent a second letter to the Town ZEO citing specific alleged violations of the Bylaws at the Property. In this second letter the parties requested that the Town ZEO issue a written decision (1) determining that the clearing, grading and filling of the Property with earth materials and the earth movement was in violation of the Bylaws; (2) ordering the owner to cease and desist from any further clearing, grading and filling of the Property with earth materials and earth movement on the Property; (3) ordering the owner to remove all earth materials unlawfully deposited on the Property; and (4) ordering the owner to restore the Property to substantially the same condition it was in at the time that he acquired it.

53. On October 28, 2010, the Town ZEO sent a letter to Ward, Wellman, Faulconer and Messrs. Rosenberg and Hamman in which he stated that the Town had directed the owner of the Property to file an application with the Planning Board for site plan review. The Town ZEO did not issue the requested Cease and Desist Order.

54. On October 29, 2010, Ward filed with the Town Clerk an administrative appeal of the Town ZEO's October 13, 2010 decision denying the request to enforce the Bylaws.

55. On November 9, 2010, Ward, Wellman, Faulconer and Mr.. Rosenberg and Mr. Hamman filed with the Town Clerk an administrative appeal of the Town ZEO's October 28, 2010 decision denying the request to enforce the Bylaws.

56. Ward, Wellman, Faulconer and Messrs. Rosenberg and Hamman agreed in writing to extend the time for the Zoning Board to open the public hearing on the administrative appeals from January 1, 2011 to January 25, 2011. The Board agreed, at the request of Plaintiffs' counsel, to consolidate the two appeals ("Zoning Appeals") of the Town ZEO's decisions into one hearing and one decision.

57. On November 9, 2010 the Planning Board began a public meeting to review the Site Plan Application. During the meeting the Town Planner told the Planning Board that the sections of the Bylaws that apply to review of the Site Plan Application are sections 07- 03-050A(1)(d), 07-09-10, 07-09-020C(5)(A)(2), and 07-05-040.

58. During that Planning Board meeting, defendant Anza stated that around eighty percent of the site has been filled and brought up to grade, and only twenty percent of the site was lacking fill material, and that the grading and filling could probably be done within six months. The Planning Board asked Town staff several questions during the hearing, and heard comments from several members of the public. At the close of the hearing the Planning Board told Private Defendants that the hearing would be continued until January, 2011, at which time Private Defendants were to provide a more detailed as-built plan showing the slopes, the buffer area, and other existing conditions, and also provide a firm date for project completion.

59. The public meeting on the Planning Board's review of the Site Plan Application resumed on February 17, 2011 after two scheduled meetings were continued due to weather. During that meeting the Planning Board voted to approve the Site Plan Application. The Planning Board Decision was filed with the Town Clerk on February 25, 2011.

60. I find that the Site Plan titled "S A Farm, LLC, Plan of Land in Northborough, Massachusetts, Owned by: 429 Whitney Street Realty Trust, #38 Boston Turnpike Road, Southborough, Massachusetts 01772." by Thompson-Liston Associates, Inc of Boylston, Massachusetts, with a revised date of January 6, 2011, which was filed with the Town Clerk on February 25, 2011, and which was approved by the Planning Board, is an accurate depiction of the conditions and uses of the Property at the time of the Planning Board Decision.

61. The Site Plan shows large areas of the Property set aside as wetland and wooded areas, a large composting area, an area for storing pallets of cobblestones, a small area for storing pallets, two small areas marked as animal pens, and an area for storing feedstock for the animals.

62. I find, based on all of the evidence before me, including the agreed record accompanying the Planning Board Decision and the Site Plan, that completing the filling and grading operation in the manner set out in the Site Plan approved by the Planning Board would require importation of around 15,000 cubic yards of earth material.

63. Plaintiffs, in the complaint filed on March 15, 2011 sought review, in the nature of certiorari pursuant to G.L. c. 249, § 4, of the Planning Board Decision. Counsel have stipulated that this form of review is proper.

64. The Zoning Board held a public hearing on the Zoning Appeals on January 25, 2011 and February 22, 2011 to determine if the grading and filling activity on the Property complied with the Bylaws.

65. Section 7-05-010 G of the Bylaws states, "(1) Any…use…not specifically permitted shall be deemed prohibited" and "(2) In all zoning districts, no use shall be permitted which would be offensive because of injurious or noxious noise, vibration, smoke, gas, fumes, odors, dust, debris, glare, radiation, or electrical interference, or other objectionable features, or be hazardous to the town due to fire or explosions or the creation of traffic hazards, or any other cause."

66. Section 7-05-10 D (1) of the Bylaws provides that "an accessory use shall be incidental and subordinate to the principal use of the lot."

67. Section 7-09-10 of the Bylaws regulates land clearing and grading. Section 7-09-10 (2) exempts land that is used for agricultural use pursuant to G.L. c. 40A, § 3 from the land clearing and grading provisions.

68. Section 7-05-20 (I)(6)(a) of the Bylaws allows for natural resource extraction on parcels zoned for Industrial use. The Bylaws define natural resource extraction as: "the process by which soil, sand or gravel is removed from any open pit, borings or any other underground workings and produced for sale, exchange or commercial use or otherwise removed from the site…."

69. On February 22, 2011, the Zoning Board closed the public hearing and made findings of facts and issued the Zoning Board Decision denying in part and granting in part the relief sought in Plaintiffs' Zoning Appeals. The Zoning Board filed the Zoning Board Decision with the Town Clerk on March 2, 2011.

70. The Zoning Board Decision includes the following findings: (1) the primary use of the Property has not been commercial agriculture; (2) the proposed future use of the Property described by Anza as a slaughterhouse or abattoir with livestock maintained on the Property would be considered commercial agriculture; (3) Anza failed to demonstrate that the amount of fill he had deposited and proposed to continue to deposit on the Property was incidental and subordinate to any primary agricultural use of the property; (4) the fill and grading operation on the Property was not otherwise permitted under the Bylaws; and (5) allowing Plaintiffs' request that the fill be removed from the Property would cause noise, dust and odor offensive to the surrounding area, and so removing the fill would not serve the interests protected by or further the purposes of the Bylaws.

71. The Zoning Board Decision upholds in part and overturns in part the Town ZEO's decision with regard to the Plaintiffs' request for zoning enforcement. The Zoning Board agreed with the Town ZEO that the fill operation was not accessory to a primary agricultural use of the Property, but determined that further zoning enforcement was necessary.

72. The Zoning Board Decision requested that the Town ZEO issue a Cease and Desist Order directing Anza to cease importing fill onto the Property but permitting him to regrade the Property with earth materials already on the Property to stabilize and make safe existing grades on the site. Private Defendants were to meet with the Town ZEO to discuss any regrading prior to commencing operations, and to file a detailed as-built plan with the Town ZEO prior to any regrading.

73. The Zoning Board Decision limited regrading operations on the Property to between 7:00 a.m. and 5:00 p.m. on weekdays and 7:00 a.m. and noon on Saturdays; directed that Private Defendants keep dust, noise, and odor created by such operations to a minimum; and directed that the work on the Property be done as expeditiously as possible and no later than a reasonable deadline for completion to be determined by the Town ZEO.

74. On March 2, 2011 the ZEO issued a Cease and Desist Order to Anza, as Trustee of the Realty Trust, prohibiting the further importation of fill to the Property.

75. Anza appealed the Cease and Desist Order to the Zoning Board, and the Order was upheld by the Zoning Board in a decision filed with the Town Clerk on June 8, 2010. Anza appealed the June 8, 2010 Zoning Board decision to this court as Count I of Miscellaneous Case No. 11 MISC 449309.

76. On September 28, 2011, the Commonwealth commenced Case No. 1184-CV-03532, Commonwealth v. Santo Anza, Individually and as Trustee of the 429 Whitney Street Realty Trust, and S.A. Farm, LLC in the Suffolk Superior Court. In that case the Commonwealth alleged Private Defendants' activities on the Property violated Massachusetts laws and regulations. The Civil Superior Court Case, went to final Judgment on June 20, 2014.

77. In 2013, as part of a sentencing order in the Civil Superior Court Case, the Realty Trust presented to the DEP a "scope of work" document for installing and analyzing ten to twelve test pits of subsurface materials and fill on the Property. The test pit site locations were selected by DEP.

78. In January of 2014, the Realty Trust hired an engineering firm to perform the test pit analysis under the oversight of the Town Board of Health, DEP, and the Worcester Superior Court, and had the subsurface material analyzed. The results of the analysis were included in a report which concluded that the subsurface materials were not solid waste or hazardous waste.

79. In June of 2014, the Superior Court approved a pilot program to screen and analyze two large compost piles on the Property alleged to be solid waste. The pilot program was administered by a third party according to an approved protocol under the oversight of DEP and the Superior Court. The third-party monitor screened and separated out all of the compost materials in both piles and presented a report characterizing the material. The report concluded that the two compost piles, alleged to constitute solid waste, were not solid waste and could remain on-site.

80. The Superior Court allowed the compost material to be spread on the Property.

81. On June 16, 2014, a final Stipulation of Judgment was entered in the Civil Superior Court Case, which requires Anza, the Realty Trust, and S.A. Farm to: (1) contain livestock and poultry on the Property by adequate fencing to prevent their escape; (2) physically separate swine from poultry; and (3) bring produce and baked goods onto the Property in quantities proportional to the number and types of animals present and use these feedstuffs only to feed those animals.

82. There is no evidence that I credit which shows that the material composted on the Property originates from the Property.

83. Between March 22, 2011 and August 17, 2011, Anza was indicted by a Worcester Superior Court Grand Jury on ten counts of violating the Commonwealth's solid waste disposal laws and regulations, three counts of violating the Commonwealth's Clean Air Act laws and regulations and three counts of violations of the Commonwealth's cruelty to animals laws.

84. Following the indictment, the Commonwealth went forward with Case No. WOCR2011- 01264, Commonwealth v. Anza, in Worcester Superior Court. On August 1, 2013, after a jury waived trial, the Superior Court found Anza guilty on eight counts of violating solid waste disposal laws and regulations, and three counts of violating Clean Air Act laws and regulations. On August 22, 2013, the court sentenced Anza to confinement in the House of Correction for one year on each count of the Solid Waste Act violations with each sentence to run concurrently. These sentences were suspended for five years--during which Anza was placed on probation. Anza was sentenced to five years probation for the three counts of Clean Air Act violations, each probationary term to run concurrently with the Solid Waste Act suspended sentence. Anza's probation was subject to terms and conditions set out in the sentencing order.

85. The Third Amended Sentencing Order in the Criminal Superior Court Case, dated May 1, 2014 ("Sentencing Order"), required Anza to prepare a plan, to be produced within sixty days, for identifying and removing all solid waste from the Property, and required that DEP approve the plan and provide for Anza a schedule for the removal of the solid waste. The Sentencing Order further provided that Anza shall, during the term of probation, not engage, personally or as part of any corporate or other entity, in any activity, transaction or operation that involves processing, storing, transferring, treating or disposing of solid waste, or any operation that commercially recycles, composts or converts recyclable or organic materials, nor shall he participate, directly or indirectly, in arranging for the transfer of any such materials between other parties, or arrange for the transfer of contaminated or reclamation soils, except as necessary and provided for in the DEP approved plan.

86. The Sentencing Order did not prohibit use of the Property by the Realty Trust as a commercial farm operation.

87. In Fiscal Years 2014, 2015, and 2016, the Town Assessor's Office classified the Property as agricultural for property tax purposes.

DISCUSSION

Standing

Prior to trial the standing of Plaintiffs to appeal the Zoning Board Decision pursuant to G.L. c. 40A, § 17 was raised by both Private Defendants and Municipal Defendants. Only a "person aggrieved," as that term is defined by decisional law interpreting G.L. c. 40A, § 17, has standing to appeal a zoning decision under G.L. c. 40A ("Zoning Act"). Without a showing of aggrievement the court has no subject matter jurisdiction over an action brought under G.L. c. 40A, § 17, so a challenge to standing under this statute based on a lack of aggrievement can be brought at any time. Warrington v. Zoning Bd. of Appeals of Rutland, 78 Mass. App. Ct. 903 , 904-905 (2010) (citing cases). [Note 3] To be a "person aggrieved" one must have suffered an infringement of a right or interest that is either explicitly or implicitly protected under the Zoning Act. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012). The injury arising from the infringement of this protected right or interest must be shown to be "more than minimal or slightly appreciable harm . . . . The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 121-122 (2011). The injury must also be shown to be particular to the appellant and distinct from the injury experienced by the general community. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999). A municipal bylaw can expand the rights and interests that fall within the scope of the Zoning Act by specifying that certain appropriate interests are to be considered by the municipality as part of the zoning scheme. See Kenner, 459 Mass. at 120-121 (when a bylaw directs the zoning board of appeals to consider visual impacts, those impacts then may be deemed to fall within the scope of protected interests under the local zoning law).

A presumption of aggrievement is granted to "abutters" and "abutters to the abutters within three hundred feet of the property line" because these parties are defined as "parties in interest" by G.L. c. 40A, § 11. See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203- 204 (1957) (because "parties in interest" must receive notice under G.L. c. 40A, § 11 they are presumed to have an interest and to be persons aggrieved). The presumption of aggrievement can be rebutted if defendants demonstrate that the claims of aggrievement raised by the plaintiffs are not interests that the Zoning Act is intended to protect. Picard v. Zoning Board of Appeals of Westminster, 474 Mass. 570 , 573 (2016). This presumption also can be rebutted if defendants present evidence which is enough to "warrant a finding contrary to the presumed fact" of aggrievement. Marinelli v. Stoughton Board of Appeals, 440 Mass. 255 , 257-258 (2003). If sufficient evidence is presented to warrant such a finding, then the presumption of aggrievement is rebutted, and "plaintiff[s] must prove standing by putting forth credible evidence to substantiate the allegations." 81 Spooner Rd., LLC, 461 Mass. at 701. However, "when a defendant fails to offer evidence warranting a finding contrary to the presumed fact, the presumption of aggrievement is not rebutted, the abutter is deemed to have standing, and the case proceeds on the merits." Id.

Two of the plaintiffs in this case, Chandler and Shore, fall within the definition of "parties in interest" under G.L. c. 40A, § 11 and are presumed to be aggrieved, and so I first turn to whether any of the defendants successfully rebutted the presumption of aggrievement which confers standing on these plaintiffs. The harms described in these plaintiffs' testimony as being personally experienced are consistent with a number of the same harms described in the pleadings and in the testimony of Wellman. "Only one of the parties in a zoning appeal must be an ‘aggrieved' person under G. L. c. 40A to establish standing to challenge a zoning decision." 81 Spooner Rd., LLC, 461 Mass. at 697 n.10 (citing Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993)). If none of the defendants successfully rebutted the presumption of aggrievement held by Shore and Chandler, then Plaintiffs have standing to bring this action under G.L. c. 40A, § 17.

Both the Municipal Defendants and Private Defendants in a pretrial memorandum asserted that Plaintiffs bore the burden of demonstrating their standing to pursue this action. This is not a complete description of the law. Under G.L. c. 40A, § 17, while "[t]he plaintiff always bears the burden of proving aggrievement necessary to confer standing, an abutter's presumption of standing . . . places on the adverse party the initial burden of going forward with evidence." 81 Spooner Rd., LLC, 461 Mass. at 701. See also Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006). None of the defendants demonstrated or argued that Plaintiffs' claims fall outside the scope of the protections afforded by G.L. c. 40A and the local zoning law, nor did any of the defendants present sufficient evidence to support a finding that Shore or Chandler are not aggrieved by the Zoning Board Decision.

The defendants did not provide evidence to rebut the testimony of Shore that during the fill and grading operation on the Property a noticeable amount of dust settled on his house, car, and outdoor furniture which was reasonably linked to the activity on the Property, and that there was a noticeable increase in rodents both inside and outside of his residence. The defendants did not rebut the testimony of Shore that he heard loud and jarring noises and smelled rancid odors within his residence which were sufficiently disturbing to interfere with his ability to engage in his professional work from home.

The defendants did not rebut Chandler's testimony that after the fill operation Cooledge Brook and a pond fed by the brook, which for many years were clear and full of aquatic life, became cloudy and devoid of aquatic life, and that she has not been able to reestablish trout in her pond. The defendants did not rebut Chandler's testimony that to avoid the odor which arose during the summer of 2010 she had to close the windows to her house. The defendants did not rebut Chandler's testimony that her customers were observed to be less interested in walking around her property after buying Christmas trees once the filling and grading operation began.

These types of harm fall within the scope of zoning regulation. Some of the evidence supporting these witnesses' asserted aggrievement might have been the topic of expert evidence. However, these asserted grounds for plaintiffs' standing did not necessarily fall into a category for which the law requires introduction of expert evidence simply to forward a plausible claim of injury--which is all that was required in the first instance of these lay witnesses. Because no defendant successfully rebutted the presumption of aggrievement held by Shore and Chandler, either through contrary evidence, or by a showing that their aggrievement does not fall within the concerns protected by the Zoning Act and local zoning law, these plaintiffs remain, by virtue of their presumed standing, aggrieved by the Town ZEO's actions and the Zoning Board Decision, which they challenged as incorrectly failing to grant Plaintiffs all of the relief sought. I find that Chandler and Shore have standing based on their undisturbed presumption of aggrievement. The standing of these two plaintiffs is sufficient to resolve the question of Plaintiffs' standing, 81 Spooner Rd., LLC, 461 Mass. at 697 n.10, and permits me to reach the merits of the zoning appeal.

Plaintiffs' Appeal of the Zoning Board Decision

Plaintiffs seek in this action to overturn, pursuant to G.L. c. 40A, § 17, so much of the Zoning Board Decision as Plaintiffs contend is inadequate to achieve enforcement of the Bylaws. Plaintiffs also seek to uphold the following parts of the Zoning Board Decision: (1) the determination that Private Defendants' activities are not commercial agriculture or incidental to commercial agriculture, (2) the finding that Private Defendants' activities on the Property, if not exempted under G.L. c. 40A, § 3, are not otherwise allowed on the Property under the Bylaws, and (3) the requirement that the Town ZEO issue a Cease and Desist Order to stop Private Defendants from bringing earth materials onto the Property. Private Defendants seek in this action a determination that the Bylaws are largely inapplicable to the Property because the use of the Property is either commercial agriculture or incidental to commercial agriculture, and therefore covered by the agricultural exemption of G.L. c. 40A, § 3. In short, Private Defendants seek to overturn the majority of the Zoning Board Decision; Plaintiffs' claim that the Zoning Board Decision did not go far enough.

I first turn my analysis to the Bylaws themselves, which were entered into evidence by agreement of the parties, and see what parts, if any, of Private Defendants' activities on the Property are allowed under Bylaws--should Private Defendants' activities not fall within the agricultural use protections created by G.L. c. 40A, § 3. I then turn to Private Defendants' argument that the Zoning Board erred in determining that the Bylaws apply to the Property. I begin with the Zoning Board's own interpretation of the Bylaws insofar as that determination is set out in the Zoning Board Decision.

The standard of review applied to the Zoning Board Decision under G.L. c. 40A, § 17 "involves a peculiar combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (internal quotation marks removed). "While a judge is to give no evidentiary weight to the board's factual findings, the decision of a board cannot be disturbed unless it is based on a legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of its judgment in applying land use regulation to the facts as found by the judge." Id. at 381-382 (internal quotation marks removed).

Relying solely on the facts that I have found in this case based on my assessment, as trier of fact, of all of the evidence before me, I find no legal error in the Board's determination that, under the Bylaws, Private Defendants cannot bring fill onto the Property to bring it up to a new, substantially elevated height. Nor do I find this determination by the Zoning Board to be unreasonable, whimsical, capricious, or arbitrary. [Note 4] Giving the Zoning Board the deference it is due, and taking the Bylaws into consideration, specifically sections 07-05-010, 07-05-020 (I), and 07-05-030, which set out the uses allowed on the Property under the Bylaw, I find no error in the Zoning Board's determination that the fill and grading operation, as I have found it to have been conducted by Private Defendants, is not an allowed use of the Property under the Bylaws. Nor do I find error in the Zoning Board's determination that, if use of the Property is governed by the Bylaws, all fill importation must cease and cannot resume on the Property.

Plaintiffs focused much of their effort at trial on urging the court, in harmony with the positions taken by Municipal Defendants, to uphold that part of the Zoning Board Decision which granted the relief they sought. Plaintiffs, in furtherance of those efforts, demonstrated the harm they have endured and would continue to experience should Private Defendants persuade the court to overturn the Zoning Board Decision. Plaintiffs' interests diverge from those of the Municipal Defendants in this case (and remain opposed to those of Private Defendants) in their request that the court overturn those parts of the Zoning Board Decision which determined that: (1) Private Defendants are not required to remove all of the fill material, but rather that the fill material already present on the Property is to remain on the Property, and (2) Private Defendants do not have to return the Property to its original condition. Plaintiffs also seek from the court a determination that Private Defendants cannot process earth materials. This was part of the enforcement request Plaintiffs appealed to the Zoning Board, but was not addressed or decided directly in the Zoning Board Decision.

Plaintiffs ask, if the court does not find that Private Defendants must cease all earth materials processing, remove all fill, and restore the Property to its original condition, that the court order Private Defendants to grade the fill in a manner favorable to them. Plaintiffs further request that the court in equity require Private Defendants to: erect a wall between the Property and their respective properties to limit noise, cover the Property with a semi-impermeable cover and plant vegetation on this cover, and plant aesthetically pleasing vegetation outside of the wall, between the proposed wall and Plaintiffs' properties. Plaintiffs also seek an order from the court that Cooledge Brook be restored to its original condition with the oversight of DEP.

The injuries claimed by Plaintiffs, and described in testimony by Shore, Chandler, and Wellman, arise almost entirely from Private Defendants' active importation of earth materials onto the Property, processing of earth materials, and movement of earth materials around on the Property. The noise, dust, traffic, and odor described in the testimony at trial was said to occur during the filling and grading operation. Bylaws Section 07-05-010 (G) states: "In all zoning districts, no use shall be permitted which would be offensive because of injurious or noxious noise, vibration, smoke, gas, fumes, odors, dust, debris, glare, radiation, or electrical interference, or other objectionable features, or be hazardous to the town due to fire or explosions or the creation of traffic hazards, or any other cause." I conclude, based on this language in the Bylaws, that Plaintiffs' concerns with noise, odors, dust, fumes, and traffic are cognizable in this action brought under G.L. c. 40A, § 17 and that Plaintiffs did suffer actual injury due directly to the fill and grading operation on the Property.

The activity of Private Defendants, identified by Plaintiffs as the cause of Plaintiffs' injuries due to noxious noise, odors, dust, and fumes, was that of trucks bringing in fill and dumping it, and of other heavy equipment moving and processing the earth materials. Much of the relief Plaintiffs seek in having the fill now removed will involve resuming the use of heavy equipment and frequent truck traffic. I infer that the removal of all of the fill from the Property will require approximately as many trucks and as much heavy equipment use as the placement of the fill required, with much the same harmful impacts resulting. The removal of this fill is not all that Plaintiffs ask for; they also ask that the Property be returned to its original condition, which will involve, no doubt, further grading and the use of heavy equipment to restore prior surface levels and vegetation. It requires no small amount of difficulty to square the relief still sought by Plaintiffs with the injuries from which Plaintiffs seek relief. Rather, the relief Plaintiffs want seems to involve a prolonged resumption of the activities that Plaintiffs assert was so disturbing and harmful to them. This is the same conclusion that the Zoning Board reached. As set out in the Zoning Board Decision, the reason for allowing the fill to remain in place was to prevent the resumption of the truck traffic and heavy equipment use that originally was deemed to violate the Bylaws.

Plaintiffs provide two reasons why the return of the Property to its original condition through the removal of all of the imported earth materials will provide a remedy that is consistent with the purposes of the Bylaws, and would operate to protect Plaintiffs' interests which fall within the scope of the Bylaws and the Zoning Act. Plaintiffs first assert that any and all activity on the Property now generates more noise because of the raised grade of the Property, and that reducing the grade will reduce the noise. Plaintiffs also claim that the brook that flows from the Property onto Chandler's property was damaged by the filling and grading operation and that removing the fill material will restore the brook.

Under the Bylaws no use is allowed in the Town if it produces noxious or injurious noise, I find that, if the change in grade due to the filling of the Property did result in noxious or injurious noise emanating from the Property this may fall within the interests protected by the Bylaws and the Zoning Act. However, there is no evidence that I credit which demonstrates that everyday activity on the Property (beyond active earth dumping, filling, and grading) generates more noise which is noxious or injurious to Plaintiffs on their respective properties, now that the locus' grade has been raised, than was generated before the grade was raised. Plaintiffs called no expert and produced no other evidence to establish that the site's raised grade creates a material difference in the way that sound carries from the Property to Plaintiffs' properties. Plaintiffs did not introduce sufficient testimony on this subject from the witnesses who did testify about the noise they can hear on their properties. Wellman testified that he could hear cows from his property now, and that he couldn't hear cows in 2009. While I credit this testimony, there was no demonstration that the difference in the audibility of the cows was due to the raised grade and not, for example, the addition of more cows or the relocation of the livestock pens to the back of the Property. Plaintiffs provided no evidence, for example, that there was a difference in the volume of people talking or a difference in volume of vehicle engines, now that the grade of the Property is raised. I cannot conclude based on the evidence before me that noise carries from the Property to Plaintiffs' properties at a higher volume now, compared with when the Property was in its original condition. I cannot say that any such a increase in audible volume is due only or primarily to the change in the grade on the Property.

Plaintiffs did present sufficient evidence at trial to allow me reasonably to infer that the placement of the fill material was the likely cause of harm to the brook on Chandler's property. I credit Chandler's testimony that for many years the brook that ran from the Property to her pond was clear and had fish in it, and that she raised trout in her pond. I also credit her testimony that after the fill operation began, the brook and her pond became bereft of life, and she has been unable to raise trout again in her pond. I find that the testimony of Anza that the brook on the Property appeared to be clear has no bearing on the quality of the water in the brook on Chandler's abutting property downstream. Nor do I credit that testimony as having any bearing on or relevance to the question of harm to the brook on Chandler's property. Harm to the quality of the brook may fall within the protections of the Zoning Act in this case. See Bylaws Section 07-05-040(E)(2) (no waterway can be polluted in a way that exceeds state or federal pollution levels); Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 543544 (2008) (groundwater quality can be a protected interest under the Zoning Act if identified in a bylaw and if pollution causes aggrievement). I can accept and do find that the massive deposition of fill on the Property had an adverse effect on the water quality of the brook and pond. However, Plaintiffs failed to establish, through expert testimony or otherwise, that the removal of the fill, and a return of the Property to its original condition, would improve the water quality in the brook that runs from the Property onto Chandler's property.

As I said, I do infer that the filling and grading operation is linked to the degradation of the brook, but no evidence was presented to show exactly in what manner the filling and grading was connected to the brook damage, and no evidence was introduced to show how to remediate the damage to the brook. Plaintiffs did not introduce evidence showing why the brook is no longer healthy--by which I mean the specific chemistry or collection of physical factors which most likely caused the damage to the brook and to Chandler's pond. Plaintiffs also failed to demonstrate that the pollution of the brook in fact does violates state or federal regulations, thus bringing Private Defendants' activity within the earlier quoted provisions of the Bylaws. I am simply left without enough evidence to conclude that the harm to the brook is not now permanent (or of such a magnitude that it would take a very long time to correct itself), or to conclude that the way to alleviate the harm to the brook is to remove the fill, rather than leaving it in place and engaging in some other remedial measures. Plaintiffs failed to produce any satisfying evidence which would allow me to reach the conclusion that removing the fill and restoring the Property to its original condition will improve the health and vitality of the brook running into Chandler's property.

Because Plaintiffs have failed to produce sufficient evidence which would allow me to infer that the Property as currently graded generates noxious and injurious noise which affects them more than they were affected prior to the importation of the earth material, I cannot conclude that requiring the removal of all of the fill material and the return of the Property to its original condition would supply any relief for Plaintiffs from such noise. I also cannot conclude that the creation of a wall around the Property to limit the escape of noise is indicated.

Because Plaintiffs failed to demonstrate or establish a causal relationship between removing the fill on the Property and restoring the brook running through Chandler's property, I cannot conclude that removing the fill and restoring the Property will return vitality to the brook running into Chandler's property. I also cannot conclude that erosion of the Property is the source of the quality issues of this brook, and that the placement of an impermeable surface on the Property which is covered in vegetation is indicated.

Because Plaintiffs have not demonstrated how removing the fill and restoring the Property to its original condition will provide them any relief, and because requiring Private Defendants to remove the fill and restore the Property will result in the resumption of the very activity that Plaintiff sought relief from before the Zoning Board, I find no error in the Zoning Board's determination that the fill is to remain in place, and the Property need not be restored to its original condition.

I am aware that leaving the fill in place can be seen as allowing Private Defendants to profit from activities that the Zoning Board determined were prohibited under the Bylaws. However, this case is brought as one to review the decisions made by the local zoning official and the Zoning Board regarding enforcement of the Bylaws. It is inappropriate to issue an order requiring the removal of the fill and restoration of the Property to its original condition without some adequate showing of how this would give meaningful relief to Plaintiffs and others interested and affected, when the Zoning Board has balanced the issues reasonably.

Plaintiffs also seek of the court injunctive relief prohibiting Private Defendants from processing earth materials. Both Chandler and Wellman testified that the trommel used to separate cobblestones from the soil generated loud noises. Wellman described the noise as a dryer full of rocks that continued for an extended period of time and was very disturbing. Chandler also testified that she could hear the trommel from parts of her Property, although not within her residence. I find that Plaintiffs have introduced sufficient evidence to demonstrate that they are suffering from the noise emanating from the processing of earth materials on the Property, and that prohibiting further earth materials processing would provide them with some relief.

Plaintiffs, in their appeal to the Zoning Board, specifically asked that earth material processing be prohibited. The Zoning Board did not make any findings or rulings, or otherwise address the processing of earth materials on the Property in the Zoning Board Decision. I find the Zoning Board needed to have addressed this issue, squarely presented by Plaintiffs. Nonetheless, I also find that, due to events which occurred after the Zoning Board Decision, the court need not decide the question whether Private Defendants' processing of earth materials is allowed under the Bylaws.

Private Defendants and Anza as Trustee of the 0 Whitney Street Realty Trust filed Case No. 11 MISC 449309, Santo Anza, at Trustee of 429 Whitney Street Realty Trust et al. v. Northborough Zoning Board of Appeals, in the Land Court on June 16, 2011. That case was heard by the court (Piper, J.) as one closely related to this case, and I take judicial notice of the pleadings and the attached exhibits referenced in the stipulation of dismissal signed by all the parties and filed on September 8, 2015, which ended that case. Private Defendants in that case appealed a decision of the Zoning Board that upheld a determination by the Town ZEO that soil processing is not an allowed use under Bylaws Section 07-05-020 (I)(6)(c) as part of a contractor's yard. Therefore, while the Zoning Board did not address Plaintiffs' concerns regarding earth materials processing in the Zoning Board Decision appealed in the instant case, the Zoning Board did uphold a determination in Case No. 11 MISC 449309 that Private Defendants cannot process earth materials for resale on the Property as part of the operation of a contractor's yard.

Private Defendants in Case No. 11 MISC 449309 had asked the court to vacate the decision of the Zoning Board and determine that Private Defendants' proposed activities are allowed of right as a contractor's yard pursuant to Bylaws Section 07-05-020 (I)(6)(c). (Use of the Property for Natural Resource Extraction, in contrast, requires a special permit from the Planning Board. See Bylaws 07-05-030, Table 1, Part B). The specific activities that the Town ZEO had not allowed in the Use Determination Letters appealed in that case were the processing of trees (to create firewood, mulch and wood fuel chips) and the processing of soil (to create salable stones and loam). The Town ZEO in that letter also stated that "salvage" materials cannot be stored on the Property as part of a contractor's yard. Private Defendants requested an amended Use Determination Letter which allowed these uses because the creation of wood products and processing of soil were the creation of "sub-assemblies" under Bylaws Section 07- 05-020 (I)(6)(c). The Town ZEO adhered to the original position that such processing is not allowed as part of a contractor's yard in the second Use Determination Letter, and Private Defendants appealed both letters. The question presented to the Zoning Board by Plaintiffs here-- whether under the Bylaws processing earth materials is an allowed use on the Property--is broader than the question before the court in Case No. 11 MISC 449309.

Private Defendants, as two of the three parties to Case No. 11 MISC 449309, stipulated to dismissal of that case on the grounds that the matter was moot because Private Defendants are "not seeking to engage in the activities that were at issue in the Building Inspector's determinations and the subsequent [Zoning Board] decision." The court accepted this stipulation and dismissed the case. The court, having accepted the stipulation of dismissal on the grounds that Private Defendants no longer seek to engage in the contested activity, holds that Private Defendants are judicially estopped from processing soil or earth materials on the Property to extract cobblestones, or to create loam, or for any other purpose which may result in a salable or useable products from processed earth materials or soil, and are judicially estopped from the storage of materials salvaged through earth materials processing on the Property.

Private Defendants' Appeal of the Zoning Board Decision

Having determined that Private Defendants are prohibited under the Bylaws from accepting fill and grading the fill on the Property; having further determined that Private Defendants are judicially estopped from any processing of earth materials for sale or storage on the Property, and from storing salvaged materials such as soil for loam (or stone removed from soil) on the Property, I turn now to the cross-claim brought by Private Defendants--that the fill and grading operation is not governed by the express provisions of the Bylaws, due to the agricultural exemptions to municipal zoning powers set out in G.L. c. 40A, § 3. If Private Defendants are correct, then they are exempt from "unreasonable regulations" under the Bylaws pursuant to G.L. c. 40A, § 3. See Tisbury v. Martha's Vineyard Comm'n, 27 Mass. App. Ct. 1204 , 1205-1206 (1989) (agricultural uses are exempt from bylaw provisions that would otherwise apply, but may still be subject to certain conditions).

If the facts that I find in this case support the Zoning Board Decision that Private Defendants' activity does not fall within G.L. c. 40A, § 3, then that decision is to be evaluated with no benefit from the section 3 provisions, and "cannot be disturbed unless it is based on a legally untenable ground or is based on an unreasonable, whimsical, capricious or arbitrary exercise of [the Zoning Board's] judgment." Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381.

Private Defendants, in their answer and amended answer to the complaint, also set out an affirmative defense that the Zoning Board had violated G.L. c. 268A and Articles 1, 10, 12, and 29 of the Massachusetts Declaration of Rights in the Massachusetts Constitution because: "Gerald B. Benson, a co-defendant . . . was and is employed by and is part owner of Camp Dresser & McKee, Inc. (CDM), a company which oversaw the operation of one of the largest land re-use and or/landfill operation in Massachusetts. The project at Rowe Quarry made CDM a direct competitor with 429 Whitney Street Realty Trust for the same soil re-use fill materials used at 429 Whitney Street." All of Private Defendants' affirmative defenses claiming invalidity of the Zoning Board Decision, cite only the participation of Gerald Benson as a basis for such invalidity.

The Appeals Court has concluded that action by a municipal board may be annulled if it is shown that the board's decision was due to "improper motives of the members of the board . . . heedless of the consequences to the public." Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 811 (1981). However, the court also stated that "if a proper motive is essential to the regularity of the official act, it follows from the presumption of regularity that the motive must be assumed to be proper until the contrary is shown." Id.

Private Defendants invoked G.L. c. 268A generally. The court infers that Private Defendants intended to reference Section 19 of that statute, which prohibits participation in decisions by municipal officials involving financial conflicts of interest. While that statute does provide a mechanism for deeming the action of a municipal board invalid due to conflicts of interest (G.L. c. 268A, § 21), the request for invalidation of a decision must come from the Zoning Board itself. See Nantasket Beachfront Condominiums, LLC v. Hull Redevelopment Auth., 87 Mass. App. Ct. 455 , 465 n.14 (2015). Presumably, under Arrigo, the court could reach the conclusion that the Zoning Board decision was arbitrary and capricious based on a conflict of interest of a Zoning Board member which was serious enough to cast the validity of the Zoning Board Decision into doubt, even though the State Ethics Commission, which is presumed to be the first stop for such a claim, had not been involved in the matter. See Nantasket Beachfront Condominiums, at 466 ("Although the remedies provided for in G. L. c. 268A are not exclusive, the statute ‘contemplates a primary role for the commission.'") (quoting Leahy v. Local 1526, Am. Fed'n of State, County, & Mun. Employees, 399 Mass. 341 , 348 (1987)); Doe v. State Ethics Comm'n, 444 Mass. 269 , 271 (2005) ("The commission is the primary civil enforcement agency for violations of the conflict of interest law"). Private Defendants had the ability, through G.L. c. 268B, § 4, to file a complaint with the State Ethics Commission requesting an investigation into the participation of Gerald Benson in the Zoning Board Decision and chose not to proceed in that manner.

However, I do not consider the purported violations of G.L. c. 268B or of Articles 1, 10, 12, 29, and 97 of the Massachusetts Declaration of Rights in the Massachusetts Constitution well taken because Private Defendants failed to present any evidence at trial to support the contention that Gerald Benson had a conflict of interest. This also was not an issue for trial listed in the joint pre-trial memorandum. The burden was on Private Defendants to present facts showing a conflict of interest existed which resulted in a violation of their due process rights. King v. Grace, 293 Mass. 244 , 247 (1936); Fisch v. Board of Registration in Med., 437 Mass. 128 , 131 (2002). Private Defendants also bear the burden of presenting sufficient facts to establish a violation of G.L. c. 268A. See Crall v. Leominster, 362 Mass. 95 , 106 (1972) (without a factual basis for allegations brought under G.L. c. 268A, no relief is available). Private Defendants having failed to meet this burden, I cannot and do not find that the participation of Gerald Benson violated Private Defendants' due process rights or otherwise undermined the validity of the Zoning Board Decision.

I turn next to whether the facts I have found support the legal determination by the Zoning Board that Private Defendants have not used the Property primarily for commercial agriculture, and then determine, if the Property has not primarily been used for commercial agriculture, whether the Zoning Board also was correct in determining that Private Defendants' use of the Property has not been incidental to commercial agriculture.

I credit the testimony of Anza and Grieco that shortly after Private Defendants bought and began using the Property in 2009, livestock was brought onto the Property. I also credit the testimony of Anza that at all times, and continuing through the time of trial, his long term goal has been to use the Property as a location for raising livestock. Plaintiffs presented no evidence that would lead me to a different conclusion about what the intended long term use of the Property is.

The question before the court, however, is not the intended use of the Property by Private Defendants, but the primary use of the Property by Private Defendants. The language of G.L. c. 40A, § 3 "requires that the primary purpose of the use of the land be for agriculture" if the section's protections from zoning regulation are to apply. Town of Eastham v. Clancy, 44 Mass. App. Ct. 901 , 902 (1997). The term agriculture is not defined in G.L. c. 40A, § 3. Rather, that statute points to G.L. c. 128, § 1A, which includes, among other activities, "the raising of livestock . . . as a commercial enterprise, [and] the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes." It is not enough that Private Defendants have some animals on the Property--the question is whether the raising of livestock and keeping of animals is the primary purpose to which the Property is put.

Between 2009 and 2010 nearly all of the income derived from the Property came from payments for accepting earth materials onto the Property and payments for cobblestones collected from the Property and culled from the imported fill. Only a very small percentage of income came from the sale of animals raised on the Property. There is no testimony that I credit which gives an exact or even approximate number of animals or livestock kept on the Property while the fill and grading operation was ongoing. What is clear from the testimony presented is that the Property was being used for a number of other things in addition to keeping livestock. Six acres of the Property were filled with 93,490 cubic yards of soil. Other parts of the Property were scraped and excavated for cobblestones and other material that could be salvaged and sold. It is apparent from the testimony and other evidence presented at trial that trucks and other heavy and noisy equipment were frequently and regularly operating on the Property to process soil and rocks. I also conclude, based on the testimony of Grieco, that the expenses that arose from Private Defendants' use of the Property arose almost entirely from the costs of the fill and grading operation. There was no credible mention in the expenses set out by Grieco of the costs of purchasing animals, purchasing fencing, housing animals, feeding animals, veterinary costs, or other costs one typically would associate with a livestock operation. I am persuaded also that Private Defendants were not engaged in commercial agriculture because they claimed to be in direct business competition for fill materials with an entity affiliated with Gerald Benson.

I find, based on all of the evidence, that, while there was some use of the Property that could be deemed agricultural in nature, the primary purpose of the use of the Property in 2009 and 2010 was not agricultural. The primary purpose of the use of the Property during those years was to accept fill and sell cobblestones. I credit the testimony of Anza that the ultimate goal of filling and grading the Property and removing cobblestones and other salvaged materials was to establish eventually an agricultural operation. It cannot reasonably be said, however, that Private Defendants were simply or primarily farming the Property in the year after it was purchased. See Town of Eastham, 44 Mass. App. Ct. at 902 (property which is "used in part for agriculture" does not qualify for the exemption under G.L. c. 40A, § 3, property must primarily be used for agriculture). Defendants can assert, at best, that they were readying the Property for farming and had a few farm animals on the Property. Based on the facts that I have found, the determination of the Zoning Board that the Property was not used for commercial agriculture is a fair and rational one, and is legally entitled to be upheld.

"Once identified, that principal use rather than any subsidiary use generally controls determinations of the property's consistency with zoning ordinances." Regis College v. Weston, 462 Mass. 280 , 290 (2012). This is not the end of the inquiry, however, because "the scope of the agricultural or horticultural use exemption [in G.L. c. 40A, § 3] encompasses related activities." Henry v. Board of Appeals of Dunstable, 418 Mass. 841 , 844 (1994). Henry is a case closely analogous to the one before the court. Both that case and this one involve extensive preparation of land for an agricultural or horticultural use before that use became the primary use of the property. Both Plaintiffs and Municipal Defendants assert that Henry controls the outcome of the case at bar.

In Henry the Supreme Judicial Court, interpreting G.L. c. 40A, § 3, stated that "[u]ses which are ‘incidental' to a permissible activity on zoned property are permitted as long as the incidental use does not undercut the plain intent of the zoning by-law." Id. Here there is no question that the Bylaws protect Plaintiffs from the noise, dust, and other harmful effects of Private Defendants' fill and grading operation. The Bylaws also do not allow fill to be imported to the Property. Such an "incidental" use is allowed so long as it is "necessary, expected or convenient in conjunction with the principal use of the land." Id. (quoting 6 P.J. Rohan, Zoning and Land Use Controls, § 40A.01, at 40 A-3 (1994)). I conclude, weighing the magnitude of the operations that took place here, that importing over 100,000 cubic yards of earth materials is neither expected or convenient in conjunction with a proposed livestock operation.

Private Defendants claim, however, that importing that amount of fill was necessary for a livestock operation given the topography of the Property when it was purchased in 2009. Private Defendants also claim that livestock were brought immediately onto the Property in 2009, and have remained on the Property and been fed and raised on the Property from that time to the time of trial. I conclude that the Property was perhaps adequate for the raising of some smaller number of livestock animals when it was purchased, but inadequate for the bulk of the Property to be used for the livestock operation contemplated by Anza.

"Determining whether an activity is an ‘incidental' use is a fact-dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible primary uses. In analyzing the [] proposed earth removal project, the focus is on the activity itself and not . . . such external considerations as the property owner's intent or other business activities." Henry, 418 Mass. at 844-845 (internal quotation marks removed). In this case, in contrast to Henry, Private Defendants did not remove earth (although they did remove cobblestones), but rather brought in earth materials. Nevertheless, I am guided by the analysis in Henry to look not at Private Defendants' intent, other business activities, and other external considerations, and instead to focus on the fill and grading operation that the Zoning Board deemed to be beyond the protections of G.L. c. 40A, § 3. The questions then are (1) whether the fill operation, grading of the fill, and salvaging of cobblestones on the Property is reasonably related to a livestock operation, and (2) what effect these operations have on the running of a livestock operation on the Property. I cannot conclude that there is an adequate, acceptable, reasonable relationship between dumping and grading over 100,000 yards of soil and other earth materials, and raising livestock, and I find that these activities are not reasonably related to each other.

I also conclude that these activities are spatially incompatible, which is to say that, while Private Defendants did keep some livestock on the Property while the fill, grading, and earth materials processing operations were occurring, these two activities cannot reasonably occur in the same area of the Property. I am further persuaded of this when I look at the Site Plan approved by the Planning Board, which was used as a chalk at trial to describe the location of the activities on the Property. The Site Plan shows two small areas of the Property to be animal pens and another small area of the Property to be a "feed drop off" location. These areas which are designated for the keeping and feeding of livestock on the Site Plan take up around one acre of the Property, which in total is over fifteen acres in size. Anza testified at trial that the animals do not graze on the Property; rather there is no pasture and they are fed with foodstuffs brought onto the Property. The Site Plan shows the uses of the Property to be separated. An area larger than all of the areas set aside for livestock operations is designated for composting. An area is set aside for storing cobblestones on pallets. Another area is set aside for storing pallets. Much of the Property is shown as wooded area or is designated as a wetland. The several uses on the Property and the areas which are not put to any use are sharply distinguished on the Site Plan.

The Supreme Judicial Court in Henry set out the test for whether a use of a property is incidental to a use which is exempt from zoning regulation pursuant to G.L. c. 40A, § 3 as follows: "The word incidental in zoning by-laws or ordinances incorporates two concepts: It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. To ignore this latter aspect of incidental would be to permit any use which is not primary, no matter how unrelated it is to the primary use." Id. at 845 (internal quotation marks removed). Like the court in Henry, I cannot conclude that Private Defendants' activity meets either prong of the two-part test for incidental use. Private Defendants placed over 93,000 cubic yards of earth materials on the Property, and then stated before the Planning Board that this is only eighty percent of the fill ultimately required. This operation went on for over a year before it stopped due to the zoning dispute giving rise to this litigation.

I have found that this profitable fill operation was the primary purpose of the use to which the Property was put, and so it cannot be said to be subordinate to the raising of livestock on the Property. I also find that the importation of earth materials is not reasonably related to the raising of livestock in this case. This is not to say that importing fill never can reasonably be related to raising livestock. Certainly, filling holes in a field or feedlot to protect livestock from injury would be reasonably related to such an operation, and the addition of earth, sand or gravel to a field or feedlot to reduce ponding water might be reasonably related to the raising of livestock. Such actions, however, would only meet both prongs of the test and be deemed incidental if they were minor in relation to the livestock operation. Here, by contrast, the filling operation took place on six acres, or well over a third of the Property.

Private Defendants' claim that the fill operation is related to the raising of livestock because the filled in six-acre area of the Property will be used for livestock after the fill operation is complete. A similar attempt to shoehorn in an impermissible use, by tying it to an eventual use that would be permitted, was rejected by the court in Henry. That court said that such an "activity [cannot] be said to bear a reasonable relationship to agricultural use." Id. at 845 (citing Jackson v. Building Inspector of Brockton, 351 Mass. 472 (1966)) This was the same conclusion reached by the Appeals Court in Old Colony Council - Boy Scouts of America v. Zoning Bd. of Appeals of Plymouth, 31 Mass. App. Ct. 46 , 47-49 (1991) (holding that "removal by truck of 460,000 cubic yards of earth" to create a cranberry bog is not incidental to an allowed use).

Private Defendants argued that Henry is distinguishable because the operation in Henry was of a greater scope, involving many years and several hundred thousand cubic yards of earth materials, and that the activity in the case before me is sufficiently minor as to be allowable as preparation for agricultural use. The Land Court in an analogous case rejected the argument that an operation of similar scope to that proposed and carried out by Private Defendants is incidental. In Coggin v. Westfield, 17 LCR 592 (2009) a horse farm sought to take advantage of the agricultural exemption of G.L. c. 40A, § 3 to remove from the site 145,000 cubic yards of earth materials over the course of two seasons. The court (Sands, J.) in that case found that the ruling in Henry controlled, because "the excavation's only relation to the horse farm is to prepare an otherwise unacceptable site for agricultural use." Id. Like Coggin, this case seems to present the question of when a parcel of land requires far too much "preparation" for that preparation to be subordinate to and reasonably related to the eventual agricultural use. See Garabedian v. Westland, 59 Mass. App. Ct. 427 , 436 (2003) ("activity of a certain magnitude is no longer incidental.")

In resolving the issue of how much preparation is too much reasonably to be defined as incidental to an agricultural use, I find persuasive the reasoning of the Appeals Court in a case, involving facts analogous to those here, in which a religious organization sought an exemption from the soil excavation provisions of a municipal bylaw. See Memorandum and Order Pursuant to Rule 1:28, Jewish Cemetery Ass'n of Massachusetts vs. Board of Appeals of Wayland, 85 Mass. App. Ct. 1105 (March 7, 2014) (unpublished). In that case the court reasoned that the excavation associated with expansion of a cemetery was not governed by Henry because the "proposal does not involve different successive uses." That is to say, the cemetery was merely expanding an existing use into a new area, and the excavation of the area was limited enough in scope to be considered reasonably a single uninterrupted use of the parcel for the protected purpose. Following this reasoning the scope of preparation for a use exempted under G.L. c. 40A, § 3 would be preparation for a use (which would therefore be reasonably related to that use) that is limited enough in scope that it properly can be deemed part of (and so subordinate to) that primary and protected use. An example of this preparation might be the clearing of brush from a field prior to tilling and planting crops in that field. The clearing and tilling both would be considered part of the unitary use of the field to grow crops.

By contrast, in this case, the Property was not simply subjected to preparation for commercial agricultural use in a manner or to a degree that reasonably could be considered part of that use. Indeed, the Property was not subject to one use, but multiple uses. Six acres of the Property were used as a repository for thousands of cubic yards of earth materials, which Private Defendants were paid for accepting, and which raised the height of that acreage around twenty feet. Private Defendants processed these imported earth materials and soil already on the Property to extract cobblestones for resale. Another part of the Property was used to process compost for resale, a use which would not fall within the agricultural exemption unless the material composted was produced on site--something Private Defendants produced no evidence of in this case and which I do not find to be so. See Building Inspector of Peabody v. Northeast Nursery, 418 Mass. 401 , 405 (1994) (to fit within the agriculture or horticulture exemptions of G.L. c. 40A, § 3 materials sold commercially must be grown, raised, or otherwise produced on site). Other areas of the Property were used for storing cobblestones, and yet other areas were used for storing pallets. The equipment used to grade the Property and process the earth materials was stored on site-- equipment which was not used to facilitate the raising of livestock. The Property was subject to these many uses starting with the initial purchase and use by Private Defendants in 2009 and continuing for about a year. The only agricultural use on the Property engaged in by Private Defendants was the keeping of some livestock. The other uses of the Property did not constitute "preparation" for the keeping of livestock, certainly not preparation that was so limited in scope that these uses could be considered part of the keeping of livestock, and therefore be subordinate to the keeping of livestock. The Zoning Board did not err in finding that Private Defendants were not exempt from regulations under the Bylaws pursuant to G.L. c. 40A, § 3 because the Property was not primarily used for commercial agriculture and the uses made of the Property were not incidental or accessory to commercial agriculture.

The following conclusions in the Zoning Board Decision are upheld: (1) Private Defendants' fill and grading operation is not exempt, pursuant to G.L. c. 40A, § 3, from regulation under the Bylaws. (2) Private Defendants cannot bring any more fill onto the Property. (3) The fill previously brought on to the Property by Private Defendants is to remain on the Property, and the Property need not be returned to its original condition. Additionally, Private Defendants are estopped from processing earth materials on the Property for the reasons set out above.

I also leave undisturbed those parts of the decision of the Zoning Board that allowed Private Defendants to grade the existing fill on the Property, subject to the conditions set out in that Zoning Board Decision. However, nothing in this decision and the judgment which will issue based on it is intended to limit, alter, or in any way affect or diminish the conditions and requirements which may apply under any laws other than the zoning laws, including, but not limited to, those set out in the final judgment of the Suffolk Superior Court in Case No. 1184- CV-03532, and the Third Amended Sentencing Order of the Worcester Superior Court in Case No. WOCR2011-01264.

Plaintiffs' Appeal of the Planning Board Decision

Plaintiffs in this action also challenge the Planning Board Decision which approved Private Defendants' site plan. Plaintiffs in the complaint sought review pursuant to G.L. c. 249, § 4 of the Planning Board Decision. The court made no ruling on whether such review was proper or available to Plaintiffs in this case. Instead, all parties, prior to trial, provided an agreed administrative record and submitted a written stipulation that all parties seek review by the court of the Planning Board Decision to be governed by the standard of review applicable to certiorari cases filed under G.L. c. 249, § 4.

Private Defendants signed this stipulation, and yet assert that the court has no jurisdiction to review the Planning Board Decision. It is settled law that an agreement of the parties has no bearing on whether the court has jurisdiction to hear a matter. See Warner v. Taunton, 253 Mass. 116 , 118 (1925) ("Waiver by the parties cannot confer jurisdiction over a cause which is not vested in the court by law. It is the duty of the court to consider such a point on its own motion."). The requirement that administrative remedies be exhausted is a general rule that can be waived if, in the court's discretion, "the administrative remedies would be inadequate, or resort to them futile." Ciszewski v. Industrial Acc. Bd., 367 Mass. 135 , 141 (1975); see also Memorandum and Order Pursuant to Rule 1:28, Wildstar Farm, LLC v. Planning Bd. of Westwood, 81 Mass. App. Ct. 1114 ,(Feb. 15, 2012) (unpublished) ("[T]he question of exhaustion of remedies is not itself jurisdictional."). Private Defendants acknowledge that the Site Plan approval by the Planning Board was not a prerequisite for a building permit or a special permit, and failed to demonstrate what further administrative action by the Town must follow site plan approval from which Plaintiffs could appeal. Cf. Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137 , 141 (2000) ("site plan review, when required in connection with the issuance of a building permit, is not a final action, but only a prerequisite to the grant of the permit.").

Based on the stipulation signed by Private Defendants that the Planning Board Decision is to be reviewed pursuant to the standard of review set out in G.L. c. 249, § 4, and based on the lack of any showing by Private Defendants that further action by or within the Town is required or even available after Site Plan approval, and noting that the requirement of administrative exhaustion is not a jurisdictional prerequisite but rather a general rule to be applied to cases where further municipal review is available and adequate, I conclude and find that the court has subject matter jurisdiction and the ability to review the Planning Board Decision.

Turning to the agreed record submitted by the parties for the court to consider in reviewing the Planning Board Decision, I conclude that the Site Plan was approved by the Planning Board based on the assumption that Private Defendants were engaging in activity that would be deemed commercial agriculture. The Planning Board in making the decision explicitly deferred to the Zoning Board regarding the question whether or not Private Defendants' use of the Property, and in particular the importation of fill as part of that use, is agricultural in nature and therefore exempt from regulation under the Bylaws pursuant to G.L. c. 40A, § 3. Review pursuant to G.L. c. 249, § 4 is to correct "substantial errors of law apparent on the record and which adversely affect material rights." Mass. Bay Transp. Auth. v. Auditor of the Commonwealth, 430 Mass. 783 , 791 (2000) (internal quotation marks removed). Bylaws Section 07-09-010 sets out the requirements for site plan approval when any clearing or grading operation greater than 20,000 square feet is to occur. I see nothing in that section of the Bylaws that requires the Planning Board to make a determination of Property use; rather, that section establishes criteria that a site plan must meet so that clearing and grading activity is done using best practices, and is not detrimental to neighbors, wildlife, vegetation, and waterbodies. I find no error in the Planning Board's determination that any decision about whether or not Private Defendants' use of the Property is commercial agriculture was a matter that had to be presented to and decided by the Zoning Board.

While the Zoning Board Decision, as upheld for reasons stated above, did not explicitly void the Planning Board Decision, it did effectively do so. The site plan assumed the importation of over 15,000 more cubic yards of earth materials (based on the testimony that Private Defendants had completed eighty percent of the fill that needed to be brought into the Property). Indeed, this was the primary focus of the Planning Board Decision. The Zoning Board Decision halted all importation of fill material. Therefore, the Site Plan, as it was approved in the Planning Board Decision, cannot be carried out as contemplated. The Zoning Board Decision also required that Private Defendants consult with the Town ZEO and submit another site plan for regrading the Property, indicating that the Town ZEO would have the ability to consider a superceding site plan presenting conditions beyond those imposed by the Planning Board Decision. And, both Superior Court cases place additional requirements on Private Defendants' ability to grade the Property and use it in the manner depicted on the site plan, and involve both DEP and DAR in overseeing Private Defendants' use of the Property.

I find, given the many limitations on Private Defendants' ability to use the Property, including: the Zoning Board's decision that no more fill can be brought onto the Property, the Zoning Board's decision that grading must be done according to a new site plan to be presented to the Town ZEO, the finding of this court that Private Defendants are estopped from processing earth materials on the Property, the Final Judgment in Suffolk Superior Court Case No. 1184- CV-03532, and the Third Amended Sentencing Order in Worcester Superior Court Case No. WOCR2011-01264, that the Planning Board Decision approving the site plan is to be set aside. The Planning Board Decision is to be vacated, without prejudice to Private Defendants again applying to the Planning Board for site plan approval of a plan for a project that is consistent with what the Private Defendants are legally entitled to do.

Preparation of the Court's Judgment

With the issuance of this decision, all the pending litigation in this court concerning the Property appears ready to proceed to judgment. I invite the assistance of counsel in preparation of the judgment which the court will direct be entered. Within twenty-one days of the date of this decision, counsel, having conferred with each other, are to submit an agreed form of the judgment which they believe ought to enter consistent with this decision by the court. If they, despite their best efforts, find themselves unable to reach agreement in full on the form of judgment to submit, they may, within the same time, file with the court competing forms of judgment, with an explanation of the reasons for their difference of view. The court then will direct issuance of the judgment without hearing unless otherwise ordered.