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Fire Dep't of Holland v. Lamountain

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1166.

2012-06-26

FIRE DEPARTMENT OF HOLLAND v. James P. LAMOUNTAIN & another.


By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant Northeast Concepts, Inc., owns a seventy-five acre parcel of land in the town of Holland; the individual defendant, James P. Lamountain, is a principal of that entity (collectively, Northeast). On September 25, 2009, the plaintiff Fire Department of the town of Holland (department) filed a complaint seeking a permanent injunction to enjoin Northeast from engaging in open-air burning on the property. Following a bench trial, a judge of the Superior Court entered judgment in favor of Northeast. The department appeals.

Background. Northeast purchased the Holland property with the intention of developing it into a residential complex for persons over the age of fifty-five. When that plan fell through, it eventually sold two lots for residential construction in 2008. Northeast retained the remaining parcel, which it intends to restore to farm production by raising cattle, swine, and chickens, and by growing forage crops. As documentation of that change of corporate intention, Northeast amended both its articles of organization and 2008 Federal tax return during the pendency of the trial. To create pasturage for the cattle, Northeast is clearing the land, which involves burning cleared brush and trees. The fires have elicited reports and complaints to the town and the department. During the spring and summer of 2009, the department was called to the property several times following reports of open-air brush fires. On one of those occasions, it took the department over an hour to control the fire. The fire chief had not issued permits for any of the subject fires.

Based on concerns for public safety, the department filed the present action to enjoin further open air burning on the property. Although open-air burning is generally prohibited in the Commonwealth pursuant to G.L. c. 48, § 13, one exception applies if the burning is for agricultural purposes within the meaning of G.L. c. 111, § 142L. To qualify under § 142L, the burning must be “the direct result of the normal commercial pursuit of agriculture, as defined in [G.L. c. 128, § 1A

], [and] shall be allowed subject to the permission of the local fire chief which need not be in writing. Said permission shall be based solely upon whether or not appropriate meteorological conditions exist to ensure safe burning.” Ibid., inserted by St.1992, c. 340.

.General Laws c. 128, § 1A, as appearing in St.1995, c. 38, § 142, defines agriculture as including “farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.”

Based on the evidence presented, the judge found that

“the defendants were clearing the land of brush and trees in order to return the land to farm production. They harvested and commercially sold a small amount of lumber to private parties. Additionally, the evidence showed that the defendants kept and raised two pigs and approximately 50–150 chickens for food purposes. For those reasons, I find that the defendants were engaged in agriculture within the broad meaning of G.L. c. 128, § 1A. Furthermore, I find that the defendants are entitled to an exemption from the [Department of Environmental Protection] air pollution control regulations for activities falling with the purview of [§ 142L], subject to the permission of the local fire chief, whose decision shall be based solely on whether or not appropriate meteorological conditions exist to ensure safe burning.”


.General Laws c. 111, § 142A, inserted by St.1954, c. 672, § 3, generally allows the Department of Environmental Protection to promulgate regulations that prohibit open-air burning to “prevent pollution or contamination of the atmosphere.”

The judge accordingly entered an order permitting Northeast to conduct open-air burning on the property, pursuant to the requirements of § 142L.

Discussion. On appeal, the department argues that even if Northeast were engaged in agriculture, it nevertheless was not entitled to an exemption because the material burned was not a “direct result of the normal commercial pursuit of agriculture.” G.L. c. 111, § 142L. The department, however, offers no threshold for what, exactly, constitutes the “normal commercial pursuit of agriculture,” other than its bald assertion that Northeast's activities somehow miss the mark.

The judge found that Northeast was engaged in agriculture, as defined by G.L. c. 128, § 1A, for a number of reasons, as quoted supra. Two of those cited were the clearing of the land to restore farm production, and the harvesting and commercial sale of lumber to private parties. On the basis of those findings, the judge ordered that the defendants may conduct open-air burning in accordance with the provisions of § 142L, including the requirement of obtaining permission from the local fire chief. The findings are supported by the record, and are not clearly erroneous.

There was no error.

Lamountain and other employees of Northeast testified at length about the expanding agricultural efforts on the property, which required that the trees and brush be cleared. Lamountain's son and a farm hand testified about the sale of cord wood harvested from trees on the property.

,

Because we conclude that the defendants are entitled to an exception under § 142L, we need not address whether the fires were for the purpose of cooking. See G.L. c. 48, § 13.

We decline the request of defendant James P. Lamountain for appellate fees and double costs.

Judgment affirmed.


Summaries of

Fire Dep't of Holland v. Lamountain

Appeals Court of Massachusetts.
Jun 26, 2012
82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
Case details for

Fire Dep't of Holland v. Lamountain

Case Details

Full title:FIRE DEPARTMENT OF HOLLAND v. James P. LAMOUNTAIN & another.

Court:Appeals Court of Massachusetts.

Date published: Jun 26, 2012

Citations

82 Mass. App. Ct. 1103 (Mass. App. Ct. 2012)
969 N.E.2d 749