July 31, 2008

State to Boxford: Protect Your Farm Stands

By Mike Stucka, The Salem News, Beverly, Mass.

Jul. 31--BOXFORD -- A Massachusetts attorney general ruling issued yesterday approved new regulations on Boxford farm stands, but said the changes -- planned to bring the town into compliance with state law -- could themselves lead to lawsuits or violations of state law.

The decision was important, as well, because it offered a strong rebuttal to Ingaldsby Farm neighbors Gerarld Nissenbaum and Daniel Lowry's decadelong push to shut down entertainment, gift shop and other activities at a farm stand there.

Nissenbaum and Lowry told the attorney general's office that the farm stands should be blocked from offering hayrides and petting zoos, but the state worried the bylaw might be too restrictive. The attorney general is in charge of reviewing all town bylaw changes.

Town Planner Len Phillips said before May's 210-24 Town Meeting vote that the town's longtime requirement of a special permit violated state law. The new bylaw -- which sets up site plan reviews of new farm stands -- was supposed to fix those problems without affecting current farm stands. Town Administrator Alan Benson was on vacation and unable to comment yesterday.

Ingaldsby Farm and the attorney for Nissenbaum and Lowry also could not be reached for comment.

Assistant Attorney General Kelli Gunagan said that reviews shouldn't be used to regulate state-protected agricultural uses.

"Site plan review cannot prohibit or unreasonably regulate agricultural activities," she wrote. "... When conducting site plan review for such uses, we caution the town that it cannot deny such uses or impose unreasonable conditions on them."

Nissenbaum and Lowry argued that the Town Meeting vote and the bylaw should be thrown out because it doesn't regulate agriculture enough or protect neighbors. The state, on the other hand, repeatedly warned that the town should carefully protect agriculture.

At its core, the town, the abutters and the attorney general's office were arguing about what "agriculture" really is. The AG's office said no one can regulate agricultural uses on land zoned for agriculture that's at least five acres.

The state ruled "that, for example, retail sales and other activities accessory and customarily performed on farms may be protected," including operations incidental or in conjunction with farming. The state also said limits on farm stand signs could be unfair, saying, "without a means to promote the sale of farm products, farms would go out of business."

Nissenbaum and Lowry, through attorney Diane Tillotson, argued that "petting zoos, haunted hayrides, play areas, retail sales, festivals, and food and restaurant service are neither farming nor agricultural. ... Although some may claim 'agritourism' activities serve to enhance a farmer's revenue, the 'Disney Farm' concept of attracting hundreds of families looking to entertain their children on a weekend afternoon has nothing to do with farming and creates serious traffic, congestion, noise and other impacts inconsistent with the limitations of a residential district."

The town, through attorney Joel Bard, argued that it was trying to promote agriculture and "to enhance the economic viability of farming activities and related farm stand operations." The town hoped to protect farmland and farm stands by allowing those accessory or incidental uses, Bard argued.


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