Farm Owner Appeals ConCom Ruling

By: William F. Galvin

There were 200 turkeys being raised at the new Resilient Family Farm off Chatham Road. WILLIAM F. GALVIN PHOTO

HARWICH — The owner of the Resilient Family Farm off Chatham Road has filed a request with the state department of environmental protection for a superseding order after the conservation commission determined a previous owner's horse paddock was not exempt from the Wetland Protection Act and requires commission review.

Farm owner Barry Viprino is contending the use of the paddock for horses establishes agricultural use of the area, which is with the 100-foot buffer zone of a wetland. Viprino is seeking to build a hoop house within the buffer zone. The commission, based on the opinion of the town's legal counsel and a statement issued by Bernadette DeBlander of DEP, determined the land does not have an agricultural exemption.

DEP informed the commission, “It is the opinion of staff and legal counsel that the stabling of horses is not [agricultural] activity – they had to be bred and raised. There is no commodity in production and for sale, therefore the land is not in agricultural use by wetland definition. The department of agricultural resources and our definitions of 'land in [agricultural] use' are different and we are bound by ours in 310 CMR 10.00.”

The conversion of a horse boarding operation at 35 Chatham Rd. over this past year to a much more commercial farm raising cows, pigs, rabbits and more than 200 turkeys in a hoop house has raised neighborhood issues. Viprino also plans to establish a greenhouse and grow hydroponic vegetables and aquaponically nurtured fish.

But the intensity of use of the 9.1-acre property in a residential neighborhood between Chatham Road and Lover's Lane, bordering wetlands extending from nearby Paddocks Pond, has many residents of the area concerned about the commercial activity, noise and impacts on the wetlands.

In a request for determination of applicability hearing in mid-February, the commission voted the former lower paddock area is not exempt from review by virtue of the past boarding of horses. On Monday the commission received notice of Viprino's appeal to DEP seeking a superseding order of conditions.

In the appeal, Viprino and his attorney Ben Zehnder take exception with the opinion issued to the commission by DEP relating to locating the hoop house in the former paddock area within the wetland buffer zone. They base their position on promulgation of a bill filed by Legislators John F. Quinn and Jane M. Swift, which preserves equine agriculture.

“My counsel, state general law, MDAR's definition, and case law support our claim that the updated [Massachusetts] General Law definition is and can be applied to the WPA (Wetland Protection Act), as proven in a number of cases in various jurisdictions throughout the state of Massachusetts,” Viprino's appeal states. He argued there is a need to update guidance documents at the state level to reflect the content of the legislation.

“The most important phrase under the House bill is 'protected under the state,' if an act or activity is protected by the state itself then it should be equally applied throughout the laws of the state rather than 'selectively' applied and protected, seemingly arbitrarily,” the appeal states.

At the time of issuance of the “Stop Work Order,” it continues, the land in question had, at minimum, met the requirements of “land in agricultural use.” The appeal argues the keeping of dairy cows on the land and the production of offspring and milk consumed for personal use demonstrate commercial use of the area.

“If not for a voluntary act of 'agricultural improvement,' the cows would've still been utilizing the area in question at the time of the site visit from the town officials, in which case, the Stop Work Order would not have been issued, as it pertained to the area delineated as the 'proposed Hoop House,' since the paddocks were pre-existing and being utilized by agriculturally protected and exempt livestock,” the appeal states.

Case law proves it is legally justifiable to surmise that the act of returning livestock to the area would in time establish the “land in agricultural use” status, the appeal adds, which would then allow the construction of the hoop house.

“Given the extensive time lapsed from the initial Stop Work Order on Aug. 18, 2016, and the serious financial loses I have suffered as a result of the action, it is the reasonable and just conclusion to not further the damage incurred,” the appeal states.

The appeal also puts forth the argument for allowing construction of a hoop house, which exceeds the exemption provision of 4,000 square feet. The proposed hoop house would be 5,040 square feet. Viprino argues they could construct two smaller hoop houses, but the larger one would have less of an environmental impact and reduces the workflow and labor issues.

“One structure allows for a more manageable and fiscally conservative runoff management plan, to prevent runoff from the livestock spaces to the north from entering the wetlands, and to contain the rainwater runoff from the greenhouse itself from entering the wetlands unfiltered,” according to the appeal.

“The conservation commission is within their right to deny the request, if their denial is reasonable and provides an environmental or conservation benefit, however there are no benefits to a division of the structure, and therefore none can be provided as reasonable,” states the appeal.

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