Winer v. Zoning Board of Appeals

18 Mass. L. Rptr. 207
CourtMassachusetts Superior Court
DecidedJuly 29, 2004
DocketNo. 03610
StatusPublished
Cited by1 cases

This text of 18 Mass. L. Rptr. 207 (Winer v. Zoning Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winer v. Zoning Board of Appeals, 18 Mass. L. Rptr. 207 (Mass. Ct. App. 2004).

Opinion

Nickerson, J.

INTRODUCTION

The plaintiff, Eric J. Winer (Winer), moved this court to enter summary judgment in his favor on an appeal from a decision of the Town of Harwich Zoning Board of Appeals (the Board) upholding the Building Commissioner’s order to cease and desist the operation of a commercial business in a residential zone. The Board contends that the plaintiffs use of the land is primarily residential, but, if it is primarily agricultural, that the use is in part commercial and prohibited by the Town of Harwich Zoning By-laws (the By-laws). Particularly, they argue that if the use is agricultural, G.L.c. 40A, §3 allows the Town to prohibit commercial stables and riding rings on parcels of land less than five acres. For the reasons discussed below, the plaintiffs motion for summary judgment is denied and the decision of the Board is affirmed.

BACKGROUND

The material undisputed facts are as follows. The plaintiff, Winer, owns approximately 1.65 acres of property in Harwich zoned as “Residential — Low Density” (RL). Since the time the property was purchased by Winer in 2001, a single-family residence, three barns, two riding rings, and a fenced-in pasture have been located on the 73,200-square-foot lot. The plaintiff asserts that the bams, riding rings and pasture occupy roughly 55,950 square feet of the lot, while the residence sits on about 1,404 square feet. The By-laws stipulate that a lot must be at least 40,000 square feet to build a single-family residence in the RL zone.

Winer claims that, although no horses came with the former horse farm when he purchased it, he brought three horses with him when he moved in and soon after purchased three more. The plaintiff now operates a horse farm, Forest Gate Farm, licensed as a Riding School and Stable by the Massachusetts Department of Agriculture Resources. In addition to the horses on the properly, there are also a number of rabbits, chickens, turkeys, geese and ducks which the plaintiff buys, sells and trades. Equestrian activities that are conducted on the property include the raising, training, selling, riding and boarding of horses.

In response to complaints by abutters to Winer’s property, the Building Commissioner began looking into the plaintiffs use of his property. As a result, on or about June 14, 2003, Winer received a “Town of Harwich Non-Criminal Violation Notice” informing him that operation of a commercial business in a residential zone is a violation of the By-laws. After receiving a letter from Winer’s attorney, the Building Commissioner issued an order to “cease and desist all activities immediately” (“Exhibit A”). The Board of [230]*230Appeals held a public hearing on August 27, 2003 and, on September 24, 2003, voted unanimously (with one absentia) to uphold the order. As a result, this case was filed by Winer to annul that decision.

DISCUSSION

Summary Judgment is granted where there is “no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Kourouvacilis v. General Motor Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). Mass.R.Civ.P. 56(c). The moving party has the burden of affirmatively demonstrating both the absence of a triable issue and that he is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once this burden is satisfied, the opposing party must establish the existence of a material factual dispute. Id. at 17. All inferences are drawn in the light most favorable to the party opposing the motion. Attorney General v. Bailey, 386 Mass. 367, 371 (1982) (citations omitted). Lastly, “summaryjudgment, when appropriate, may be rendered against the moving party.” Mass.R.Civ.R 56(c). Because the record reveals no disputed material facts, this case is proper for summary judgment.

There are three elements pertinent to summary judgment in this case. First, there are two requirements that the plaintiff must satisfy to qualify for the agricultural exception expressed in G.L.c. 40A, §3: the plaintiffs use of his land must be agricultural and that agricultural use must be the primary use of his property. The third dispositive issue is whether the Town can regulate lots less than five acres primarily used for agriculture in residentially zoned areas.

A. Plaintiffs Use of the Property as Agricultural

The first issue at hand is whether the plaintiff s use of his property is agricultural. According to the Bylaws, agricultural uses such as the “raising and keeping of livestock, horses and poultry, but not including the raising of swine for any purpose, nor fur-bearing animals for commercial use or sale,” are “allowed as of right” in RL zoning districts.2 Massachusetts General Laws Chapter 40A, Section 3, provides in relevant part:

No zoning ordinance or by-law shall . . . prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, . . . nor prohibit, or unreasonably regulate, or require special permit for the use, expansion, or reconstruction of existing structures thereon for the primary purpose of agriculture . . . except that all activities may be limited to parcels of more than five acres in area not zoned for agriculture.

Plaintiff contends that his use of his property to board, train, and raise horses qualifies him for this agricultural exception. The Board argues that Winer’s commercial use of the property, namely, a commercial stable and riding ring, disqualifies him from this exception.

Because neither the By-Law nor G.L.c. 40A, §3 define “agriculture,” it is appropriate to look to the word’s “usual and accepted meanings from sources presumably known to the statute’s enactors” as well as to consult the use and definition of the word in other legislation. Steege v. Board of Appeals of Stow, 26 Mass.App.Ct. 970, 971 (1988), citing Building Inspector of Mansfield v. Curvin, 22 Mass.App.Ct. 401, 494 (1986). The plaintiff cites several other Massachusetts statutes in an attempt to define “agricultural”' as including the keeping of horses for commercial enterprises.3 Additionally, Winer points to the ruling affirmed in Steege where the court stated, “the plaintiffs’ purchase and raising of horses, their stabling, training through the operation of the riding school, and their participation in horse shows are all part of the one whole and constitute agriculture as that phrase is used in c. 40A, §3.” Steege at 972. The plaintiff in this case claims to engage in the same activities as the plaintiff in Steege, including training horses and riders and raising horses to breed and sell their offspring.

The defendant differentiates this case by arguing that Winer’s property will be used predominantly for a commercial riding school, not raising or breeding horses. They therefore contend the plaintiffs use does not fit the definition of agricultural as articulated in Steege. This argument fails for several reasons. First, the purpose of G.L.c. 40, §3 is to promote agriculture.4 The term “agriculture” as employed in §3 “is interpreted broadly in order to promote the economic viability of agricultural enterprises in Massachusetts.” Town of Natick v. Modern Continental Construction, 8 Mass. L. Rptr.

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Cite This Page — Counsel Stack

Bluebook (online)
18 Mass. L. Rptr. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winer-v-zoning-board-of-appeals-masssuperct-2004.