Transcript www.massagcom.org

MAAC Workshop
January 11, 2014
Bob Ritchie Esq.
Brad Mitchell, Mass Farm Bureau
Frank Di Luna Esq.
Smith Vocational School, Northampton
Nuisance
"There is perhaps no more impenetrable jungle in
the entire law than that which surrounds the word
nuisance.“
William Prosser, The Law of Torts, 4th ed
Nuisance

In tort law, a type of wrong. A wrong arising from the
unreasonable, improper, indecent, or unlawful use
of property to the annoyance or damage of another,
or the general public.

In tort law, a type of wrong. A wrong arising from the
unreasonable, improper, indecent, or unlawful use
of property to the annoyance or damage of another,
or the general public.
Private Nuisance

A private nuisance is an interference with a
person's interest in the use and enjoyment of his
land.
Public Nuisance

A public nuisance is an interference with the
common right of the general public or an indefinite
number of persons; an unreasonable interference
with the health, safety, peace, or comfort of the
community.
Nuisance

ALM GL ch. 49, § 21 (2013)
§ 21. Spite Fence; Definition; Deemed to be Private Nuisance;
Remedy.
A fence or other structure in the nature of a fence which
unnecessarily exceeds six feet in height and is
maliciously erected or maintained for the purpose of
annoying the owners or occupants of adjoining property
shall be deemed a private nuisance. Any such owner or
occupant injured in the comfort or enjoyment of his
estate thereby may have an action of tort for damages
under chapter two hundred and forty-three.
Nuisances

ALM GL ch. 111, § 125A (2013)
§ 125A. Nuisances and Causes of Sickness -- Farms and Farm Operations -- Abatement; Appeal; Procedure.
If, in the opinion of the board of health, a farm or the operation thereof constitutes a nuisance, any action taken by said
board to abate or cause to be abated said nuisance under sections one hundred and twenty-two, one hundred and twentythree and one hundred and twenty-five shall, notwithstanding any provisions thereof to the contrary, be subject to the
provisions of this section; provided, however, that the odor from the normal maintenance of livestock or the spreading of
manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal,
generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or
farming lands shall not be deemed to constitute a nuisance.
In the case of any such nuisance a written notice of an order to abate the same within ten days after receipt of such notice
shall first be given as provided in section one hundred and twenty-four. If no petition for review is filed as herein provided,
or upon final order of the court, said board may then proceed as provided in said sections one hundred and twenty-two,
one hundred and twenty-three and one hundred and twenty-five, or in the order of the court. If the owner or operator of
said farm within said ten days shall file a petition for a review of such order in the district court for the district in which the
farm lies, the operation of said order shall be suspended, pending the order of the court. Upon the filing of such petition
the court shall give notice thereof to said board, shall hear all pertinent evidence and determine the facts, and upon the
facts as so determined review said order and affirm, annul, alter or modify the same as justice may require. The parties
shall have the same rights of appeal on questions of law as in other civil cases in the district courts.
Piggeries

ALM GL ch. 111, § 143 (2013)
§ 143. Nuisance and Harmful Trades -- Site Assignment.
No trade or employment which may result in a nuisance or be harmful to the inhabitants, injurious
to their estates, dangerous to the public health, or may be attended by noisome and injurious
odors shall be established in a city or town except in such a location as may be assigned by the
board of health thereof after a public hearing has been held thereon, subject to the provisions of
chapter forty A and such board of health may prohibit the exercise thereof within the limits of the
city or town or in places not so assigned, in any event. Such assignments shall be entered in the
records of the city or town, and may be revoked when the board shall think proper.
The department of environmental protection shall advise, upon request, the board of health of a
city or town previous to the assignment of places for the exercise of any trade or employment
referred to in this section, and any person, including persons in control of any public land,
aggrieved by the action of the board of health in assigning certain places for the exercise of any
trade or employment referred to in this section may, within sixty days, appeal from the assignment
of the board of health to the department and said department may, after a hearing rescind, modify
or amend such assignment.
Notwithstanding any provision in section one hundred and twenty-five A of this chapter, this
section shall apply to the operations of piggeries.
Private Nuisance

ALM GL ch. 243, § 6 (2013)
§ 6. Nuisance Actions Against Farming Operations.
No action in nuisance may be maintained against
any person or entity resulting from the operation
of a farm or any ancillary or related activities
thereof, if said operation is an ordinary aspect of
said farming operation or ancillary or related
activity; provided, however, that said farm shall
have been in operation for more than one year.
Farming and Agriculture Defined

ALM GL ch. 128, § 1A (2013)
§ 1A. Farming and Agriculture Defined.
"Farming" or "agriculture" shall include 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.
Good Agricultural Practices
(GAPs)
GAPs: The term Good Agricultural Practices (GAPs)

can refer to any collection of specific methods,
which when applied to agriculture, produces results
that are in harmony with the values of the
proponents of those practices. There are numerous
competing definitions of what methods constitute
“Good Agricultural Practices,” so whether a practice
can be considered “good” will depend on the
standards you are applying.
“Generally Accepted Agricultural Practices”

“Generally accepted agricultural practices” shall
mean those practices which are feasible, lawful,
inherent, customary, necessary, reasonable, normal,
safe, and typical to the industry or unique to the
commodity as they pertain to agricultural practices.
“Generally Accepted Agricultural Practices”

Those methods used in connection with
agricultural or forestry operations which do not
violate applicable federal, state or local laws or
public health safety and welfare and which are
generally accepted agricultural or forestry practices
in the agriculture or forestry industry.

"Generally accepted agricultural or forestry
practices" includes practices which are recognized
as best management practices and those methods
which are authorized by various governmental
agencies, bureaus and departments, such as the
Best Management Practices

Agricultural BMPs are management,
agronomic/vegetative and structural practices that
permit economical and viable production while
achieving the least possible adverse impact on the
environment, including water quality. They also
minimize possible adverse impacts on human,
animal and plant health.
Best Management Practices

Best Management Practices prevent pollution from
agricultural operations.

Plant nutrients, bacteria, sediment and agricultural
chemicals can be controlled so that pollution of
surface and ground water does not occur and limit
the use for drinking, aquatic life and recreation.

Odor, vectors, and other nuisances can also be
minimized by adequate BMPs.
BMP

Professional judgment is required to properly
select BMPs for a particular farm or site.

It is not intended that all BMPs necessarily be
applied to a particular situation.
BMPs and Normal Ag Practice

Frequently Referenced in Statute, Regulations and
policy settings
 “Generally
Accepted Ag Practices”
 MGL Chapter
111
 Equivalent to
“Normal”
 “Normal
 Ag
Maintenance and Improvement”
Provisions of Wetlands Act
 Zoning
and 40aS3
 “Reasonably Regulate”
Difference Between Normal and
Best

You can get caught up in legal and policy
discussions

But best to start is with common sense

The best place to get a common sense definition….
Any 6 Year Old
Trisuli’s Explanation of Best vs.
Normal

Best – what we would like things to be like all of
the time.

Normal – the way things are most of the time.
In Agriculture

Normal is the way most people farm.

Best is the way we would like to most people farm
in order to protect air quality, water quality, animal
health, wildlife, to minimize pesticides, and to
avoid causing nuisances (noise, odor, etc.)

Sometimes they are the same, but not usually.
Best vs Normal Practice

Best Practices often Become Normal over time.
Today’s BMPs in ag are often tomorrow’s normal
practices.

Making BMPs into Normal Practices usually
requires:
 Finanical
Assistance
 Technical
Assistance
 Educational

Assistance
Can do a lot of harm by pushing BMPs without this
Best vs Normal

In relatively rare situations it is acceptable to
mandate Best

Typically where protecting a resource of particular
importance demands higher protection
 Only
works though when financial, technical and
educational assistance accompanies the requirement
 Dairy Farms in
Hudson River Valley and NYC Water
Not Always Easy to ID or Distinguish Best
and Normal

Situation Specific

Changes over time

May vary between Region, or even farm

Resources
 NRCS
– Epitomizes making Best the norm.
 Manufacturers Direction
 Gov’t
Agencies
 Farm
Bureau BMPs (mix of best and normal)
Identifying BMPs and Normal Practice

Make sure that you are clear that you are asking
what is “best” and “normal.

What is the need?
 Establishing
 “normal
the farmer’s requirements under the law
practices”
 Mediation
 May
be an opportunity for Best
Just because you can do
something…

…doesn’t mean that you should.

Equally true for regulators, government and
farmers.

Wherever possible, the needs of the situation
rather than the law should determine whether
best or normal practices are employed:
 cooperation
 assistance
Bird Device Situation

Blueberry Farm using scare device

Neighbor Complaint

BOH asked for AgCom Adice
 AgCom

recommended netting
BOH issued order under nuisance authority to use
netting
Bird Device Situation

BOH authority. AgCom gave bad advice.

Use of the bird device is a normal practice in MA.

Farmer had a right to use it.

Question of whether he was using it within the
confines of “generally accepted practices”
 Manufacturers directions
 USDA
Wildlife Control
 UMASS
Extension
Bird Device

Question of whether he was using it within the
confines of “generally accepted practices”
 Manufacturers directions
 USDA
Wildlife Control
 UMASS
Extension
 Made
recommendations. Did not answer whether it was
“generally accepted practice”
 Better
situation for mediation than regulation.
Disclaimer
The information contained herein constitutes
educational material and not legal advice.