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Massachusetts Court Allows Landowners’ Soil Importation Operations as Incidental Use of Agricultural Property

In Massachusetts, certain uses and activities must be permitted under local zoning laws or approved by the proper authority before they are allowed to take place on a specific parcel of property.  In a March 21, 2019 Massachusetts zoning case, the plaintiffs sought to reverse a local decision that prevented them from transporting dirt and fill onto their property.

The plaintiffs in the case operated a farm on several parcels of property that they owned.  From 1990 through 2016, the plaintiffs had gravel removed from one of the parcels, which eventually created a 45-acre, 40-foot deep pit on the property.  The plaintiffs intended to fill the pit with dirt and restore the area in order to grow crops.  They contracted with a hauling company to accept fill from construction projects in and around Boston.  The hauling company was paid by construction sites to take away dirt fill, and the plaintiffs were paid to accept the fill while also having their pit filled in and restored to farming use.

The local building commissioner objected to the arrangement and ordered the plaintiffs to cease and desist all soil importation operations immediately.  The zoning board upheld the commissioner’s order, finding that soil importation was not a permitted use under the local bylaws.  The plaintiffs appealed the decision, and the matter was presented in the Massachusetts Land Court.

Pursuant to the local bylaws, soil importation was not expressly listed as an allowed use for the plaintiffs’ property, which was zoned for agricultural use.  The primary issue for the court was whether or not the plaintiffs’ soil importation was permitted as merely an incidental use pertaining to the principal use of the property for agriculture.

Although the soil importation was conducted exclusively on one lot, the Land Court considered the impact of the fill project on the entire farm, which consisted of six separate parcels owned by the plaintiffs.  The court concluded that the fill activity amounted to less than a quarter of the total acreage of the farm, and that, when considering all of the agricultural activities carried out on the farm, the soil importation was a relatively minor aspect.

The court went on to find that the improvements resulting from filling in the pit, i.e., restoring the land for farming use, were sufficient to establish that the soil importation was related to the farm’s principal use for agricultural.  Accordingly, the court held that the activity was lawful as an incidental and subordinate to the agricultural use of the farm, and vacated the cease and desist orders.

The Massachusetts real estate lawyers at Pulgini & Norton assist individuals in legal matters relating to residential property.  We can provide guidance regarding land use and zoning regulations, represent home buyers or sellers in property sales transactions, and handle many other residential real estate issues.  Arrange a free consultation with one of our experienced attorneys by calling (781) 843-2200 or contacting us online.

More Blog Posts:

Massachusetts Property Owners Seeking Approval to Build House Encounter Frontage Issues, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

Massachusetts Court Finds Easement Holders Lack Right to Pave Gravel Road Over Owner’s Objection, Massachusetts Real Estate Lawyer Blog, published December 12, 2018

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