RICHARDSON NORTH CORP v. ZONING BOARD OF APPEALS OF UXBRIDGE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The zoning board of appeals for the town of Uxbridge (board) appeals from a judgment of the Land Court vacating the board's final decision requiring Elias Richardson, Third (Richardson), to cease his soil importation operation on his property. On appeal, the board argues that its determination that the soil importation was neither lawful as a primary, agricultural use nor as a use incidental to the property's farming activities was reasonable and supported by the record. The judge, the board argues, thus erred in declining to defer to it. We agree and, accordingly, reverse the judgment and order a new judgment to be entered affirming the board's decision.

Background. We recite the relevant facts as found by the judge. The property at issue contains approximately 202 acres of land in Uxbridge, and an additional eighteen acres situated across the border in Rhode Island.³ The property consists of six parcels of land which together comprise the Richardson farm.⁴ The entire property is located in the town's agricultural zoning district. The property has been in the Richardson family for several generations, and at least some portion of the land has always been designated for farming purposes. In its current state, portions of each of the component lots of the property are used for pasturing cattle and horses, growing hay and corn, storing animal feed and farm equipment, and commercial forestry.

Richardson purchased the property around 1990. To finance the purchase, Richardson entered into a contract to sell gravel from the property. Gravel was removed from an approximately forty-five acre area, and removal continued until 2016, when Richardson was forced to stop due to a dispute with the town over the earth removal permit. The result of the graveling operation is a gravel pit that is approximately forty-five acres and approximately forty feet deep.

Around 2015, Richardson entered into an agreement with a soil broker, pursuant to which the broker would be allowed to import a minimum of 200,000 tons of fill to the gravel pit each year for a period of ten years. Filling operations began in 2016.

On January 10, 2017, following an investigation, the zoning enforcement officer for Uxbridge issued a written notice to Richardson notifying him that his soil importation operation was in violation of the town's bylaws. On February 1, 2017, the officer issued a cease and desist order to Richardson ordering him to discontinue all soil importation activities, and on February 6, sent an amended cease and desist letter to Richardson. Richardson appealed the January 10 notice and the February 6 cease and desist order to the board. He argued that while the operation was not agricultural in nature, it was nonetheless exempt from the town's bylaws since it was incidental to the property's primary use as a farm. On April 19, 2017, following a hearing, the board upheld the notice and order, concluding that the operation was “a separate principal use of the Property, which is not allowed by the Town's zoning by-laws, and also is not customarily incidental to or subordinate to, any agricultural use of the Property.”

Discussion. General Laws c. 40A, § 3, authorizes a town to regulate the use of privately-owned property within its borders. However, the town may not “prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture.” G. L. c. 40A, § 3. This exemption also applies to uses related to, or incidental to, the primary agricultural use of land. See Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 844 (1994). Richardson does not claim that the filling operation was permitted pursuant to G. L. c. 40A, § 3. Rather, he claims that the use is permitted under the exemption's extension to incidental uses. The question in this case therefore devolves to whether the filling activities on the property are incidental to the property's principal use as a farm.

“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” (quoting G. L. c. 61A, § 2). Henry, 418 Mass. at 844. “The word ‘incidental’ ․ ‘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.’ ” Id. at 845, quoting Harvard v. Maxant, 360 Mass. 432, 438 (1971).

“On appeal to the [Land Court], the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him.” Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295 (1972). See G. L. c. 40A, § 17 (“The court shall ․ determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board”). “Judicial review is nevertheless circumscribed: the decision of the board ‘cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ ” Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). In reviewing the judge's decision, we accept his findings of fact, unless clearly erroneous, but determine independently the application of law to those facts. See Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009).

In this case, the judge did not identify any of the board's grounds for upholding the notice and order as unreasonable or legally untenable. Instead, the judge simply found that, in his view, the filling operation was incidental to the agricultural use of the property, and was therefore lawful. By reversing the board's decision based only on his own consideration of the applicable law, the judge improperly substituted his judgment for that of the board. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954).

Upon the facts found by the judge,⁵ recited above, the board's finding that the filling operation did not constitute an incidental use was not legally untenable or unreasonable. In concluding that the operation was incidental to the property's agricultural use, the judge attempted to differentiate the facts from two factually-similar cases, Henry v. Board of Appeals of Dunstable, 418 Mass. 841 (1994), and Old Colony Council—Boy Scouts of America v. Zoning Bd. of Appeals of Plymouth, 31 Mass. App. Ct. 46 (1991) (Old Colony). In Henry, the Supreme Judicial Court held that a proposed removal of 300,000 to 400,000 cubic yards of gravel over a three to four-year period for the purpose of establishing a Christmas tree farm was not incidental to such a proposed use. Henry, 418 Mass. at 845. In Old Colony, this court ruled that an organization's proposed removal of 460,000 cubic yards of fill over a two and one-half year period for the purpose of establishing a new cranberry bog was not incidental to the proposed agricultural use. Old Colony, 31 Mass. App. Ct. at 49.

In distinguishing the cases, the judge focused on the “net effect” of the proposed incidental use on the surrounding area, a factor which the courts in Henry and Old Colony put great emphasis on. See Henry, 418 Mass. at 846; Old Colony, 31 Mass. App. Ct. at 49. In Henry and Old Colony, the judge noted, the proposed excavations would have substantially altered the nature of the land and would have served an agricultural purpose that did not exist prior to the start of the excavation. By contrast, the judge found that if the soil filling operation in this case was “allowed to go forward, the end result –- of a concededly large operation –- would be improved farmland which approximates the historical condition of the land․ [The operation] would incrementally, over a period of ten years, reclaim the existing gravel pit returning the property to exclusively” agricultural use. The judge further found the operation to be sufficiently minor in relation to the agricultural uses of the property, noting that it would occupy less than a quarter of the acreage of the entire farm.

While the distinctions drawn by the judge between this case and the others are well-taken, we cannot say that the judge's reading of Henry and Old Colony compels a conclusion contrary to the board's. See ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242, 246 (1996) (holding that where reasonable minds may differ on conclusion to be drawn from evidence, board's judgment is controlling). First, even if the filling operation would ultimately result in land that is level and similar to its condition that existed before the land was graveled, the scope of the operation necessary to arrive at that result is significant. The agreement struck by Richardson contemplates delivery of at least two million tons of fill over a period of ten years, which would equate to three million dollars in income to Richardson. The scale of the filling operation, in terms of soil moved, duration, and profits, far exceeds the excavations proposed in Henry and Old Colony. See Henry, 418 Mass. at 841; Old Colony, 31 Mass. App. Ct. at 47. Furthermore, while the judge emphasized the proportionately small physical size of the subject area, the larger property –- regardless of its size -- supports a modest amount of farming activity, and currently produces very little income. Accordingly, we cannot say that a rational basis did not exist for the board's determination that the filling operation is not “subordinate and minor in significance” to the property's primary use. Henry, 418 Mass. at 845. See Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 486 (2009).

Second, the board's decision is further supported by evidence in the Land Court record that the gravel pit area could be returned to agricultural use with a small amount of fill, rather than the amount of fill it would take to realize the same grade as the surrounding land. While the land may be more suitable for farming if it were level with the surrounding land, the proposed incidental use here, as opposed to the excavations in Henry and Old Colony, does not appear to be necessary to support the primary, agricultural use of the area. See Henry, 418 Mass. at 841; Old Colony, 31 Mass. App. Ct. at 47. Contrast Jackson v. Building Inspector of Brockton, 351 Mass. 472 (1966) (construction of new building necessary to operate agricultural machine on farm in residential district was reasonably related to farming activities and thus permitted under zoning ordinance). We therefore also cannot say that the board's determination that the filling operation was not reasonably related to the property's farming activities was unwarranted.

The board, in its discretion, could reasonably find that the filling operation was not an incidental use. Accordingly, its decision was not legally untenable, nor was it arbitrary or capricious. The judgment is reversed, and a new judgment shall enter affirming the decision of the board.

So ordered.

FOOTNOTES

3.   We need not reach whether the parties, during proceedings in the Land Court, stipulated to how much of the property was at issue.

4.   Title to the farm is currently in Richardson-North Corporation, a now-dissolved Massachusetts corporation. Richardson was an officer and shareholder of the company, and is the apparent successor in interest to its assets, including the property.

5.   The parties dispute whether it was proper for the judge to have considered the entire property, rather than only the plot on which the gravel pit sits, in his analysis. Because we conclude that the board could have arrived at the same conclusion had it applied the same facts as the judge, we decline to address the matter.