Farmer Sues Town Over Enforcement Actions

By: William F. Galvin

Topics: Agriculture & Farming

Resilient Family Farm.  FILE PHOTO

HARWICH — The owner of Resilient Family Farm, who has been battling with the town for nearly two years over permitting issues, has filed a lengthy lawsuit in Barnstable Superior Court claiming he has been defamed by regulatory boards and department directors and administrators.

Barry Dino Viprino has been doing battle with the town over the commercial status of his farm at 35 Chatham Rd. as well as wetland issues, the location and types of structures allowed, the right to operate a piggery and its handling of manure and conversion to compost.

“Through this action, plaintiff seeks to protect from unlawful interference certain rights guaranteed by Harwich Town Code, the Massachusetts Declaration of Rights, Massachusetts General Law and the US Constitution,” the suit states.

Among those agencies named in the suit are the board of selectmen, board of health and conservation commission. Also named are Town Administrator Christopher Clark, Police Chief David Guillemette, Building Commissioner Raymond Chesley, Conservation Administrator Amy Usowski, Health Department Director Meggan Eldredge and former director Paula Champagne and Lee Culver as Director of Emergency Management. Several present and past town representatives are also named as individuals, including Frank Boyle, Matthew Cushing, Selectman Michael MacAskill and Rob Mador.

Viprino is requesting a preliminary injunction prohibiting the defendants and/or their agents from seeking additional retaliatory actions until these issues have been adjudicated. He is also seeking a preliminary injunction prohibiting the defendants from “continued defamation of plaintiff, the farm and plaintiff's family.”

“Resilient Family Farm is not currently in business, but we are absolutely an active farm and still operating,” Viprino stated in an email to The Chronicle. “We are not open for sales at this time. We do intend to reopen when these issues are finally resolved.”

The suit seeks declaratory judgment on numerous issues with which Viprino and the town have had considerable debate, including the applicability of the state Wetland Protection Act and the Harwich Wetland Protection Bylaw on “work performed for normal maintenance or improvement of land in agricultural use.”

The document states the property was used for the commercial keeping of cows, fish, goats, poultry, rabbits, and swine and for the the keeping of horses. It further states the property was historically used for commercial cranberry and poultry farming. As agricultural uses, the activities are exempt from the Wetlands Act, the suit claims.

The suit also cites the town's acceptance of the “Right to Farm Bylaw,” which in part states: “It is hereby determined that whatever impact may be caused to others through the normal practice of agriculture is more than offset by the benefits of farming to the neighborhood, community and society in general.”

The document also cites a provision of the bylaw related to a neighbor issuing a grievance to a member of a town agency, board or commission which states the town must forward a copy of the grievance to the agricultural commission, which it shall review, and facilitate the resolution involving all the town parties. The suit states that numerous grievances were never forwarded to the agricultural commission.

A lengthy section of the suit relates to the decision by Police Chief David Guillemette not to issue a license to carry a firearm (LTC) to Viprino. The suit states Guillemette's second denial of the LTC application “was a retaliation for plaintiff asserting his rights in other cases involving the defendants. The use of charges that plaintiff was acquitted of, to justify the violation of plaintiffs civil rights, is a violation of the pivotal notion within our criminal justice system that a person is innocent until proven guilty.”

The suit alleges the board of health was “unreasonable, arbitrary, whimsical, or capricious” for their pursuit of alleged violation of operation of an unlicensed piggery, while not taking actions against the other farmers which met the same definition and criteria as were being used to allege a violation by Viprino.

Viprino asks the court to enter a declaration affirming the health board was unreasonable, arbitrary and capricious in the handling of the piggery issue in whole and that the “property's piggery operation is a preexisting nonconforming use...and as such is permissible and protected.”

The suit seeks a number of declarations enjoining the town from “enforcing any statute, regulation, or guideline against the plaintiff on the property that would unlawfully or unconstitutionally interfere with, abridge, or regulate plaintiff exercise of his rights to utilize any portion of the property.”

The suit asks the court to order the town to print retractions in each newspaper, online, and on social media, for each case of defamation. It asks the court to award damages, attorney fees and costs on each claim.

It further seeks an award for punitive damages for each instance of “egregiously insidious defamation through libel, slander, and trade libel, since retractions alone will not remedy the damage already caused by the statements.”

Town Administrator Christopher Clark said on Monday the lawsuit has been provided to town counsel for review.