Tanque v. Board of Health

47 Mass. App. Dec. 69

• Court: Massachusetts District Court, Appellate Division
• Decided: November 11, 1971
• Docket: No. 2886/69
• Status: Published

Opinion

Sullivan, J.

This is a petition for review brought under G.L.c.111, §125A which provides for a review in the District Court of an order of a Board of Health that adjudges the operation of a farm to be a nuisance.

The petitioners were keeping and raising twenty-three pigs on their property in Fair-haven. The respondents, as the Board of Health of Fairhaven, notified the petitioners by letter that

“as a result of an investigation— it is determined that the operation of a piggery on said property constitutes a nuisance. — you are ordered to remove all pigs — within ten days —.”

The Board contends that the petitioners are not entitled to a review because §125A pertains to the operation of a “farm” whereas its order pertains to the operation of a “piggery”.

This issue, as to whether or not the petitioners are entitled to a review, was argued before the reporting justice who ruled that “this is not a farm within the meaning of the statute” and dismissed the petition.

Donald R. Perry for the Petitioners. William H. Carey for the Respondents.

This ruling was erroneous and petitioners are entitled to have the type of review afforded by §125A.

Prior case law held that “the maintenance of a piggery is use of land different from that of ordinary farming”. However, in 1966, Section 1 of Chapter 111 of the General Laws was amended by adding the following definition:

“Farming” .. . shall include . . . the keeping and raising of . . . swine ... a farmer ... is hereby defined as one engaged in farming ... as herein defined...

This definition eliminates any distinction between a piggery and a farm for the purposes of §125A.

The finding is ordered vacated, and the case is remanded to the District Court for further hearing consistent with this opinion.