Attn.. Kehoe: Westport farm bylaw change does not conflict with state law

Posted 2/12/20

The proposed Article III Special Town Meeting that proposes amending the town’s Right to Farm bylaw does not conflict with state law, writes Michael A. Kehoe, attorney for the petitioners. In a …

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Attn.. Kehoe: Westport farm bylaw change does not conflict with state law

Posted

The proposed Article III Special Town Meeting that proposes amending the town’s Right to Farm bylaw does not conflict with state law, writes Michael A. Kehoe, attorney for the petitioners. In a letter dated February 3, he states:

The central question presents is whether the proposed bylaw amendment is an impermissible intentional exercise of authority over the Board of Health when it is acting in furtherance of its statutory duty.

I submit that the proposed bylaw amendment is not impermissible and clarifies the right to farm in Westport.

First, the Town of Westport and the Commonwealth of Massachusetts actively encourage and seek to promote and protect agriculture. In part, both the Commonwealth and Westport try to protect farming from abutters and town agencies. In Westport, the “right to farm” is codified in Article LVI, which borrows heavily from the Commonwealth. The Commonwealth looks to the State Constitution (Article 97) as well as provisions of various chapters and section of the General Laws (for example C.40A, Section 3). Impediments to farming should be discouraged. Indeed, they should be avoided whenever possible.

Second, the proposed bylaw amendment does not prevent or interfere with the Board of Health’s enforcement of state laws and regulations governing protection and safety of the public. The proposed bylaw amendment does not prohibit inspections to ensure the safety of the general public and livestock. The statutory duty of the Board of Health is not to decide whether or not to permit farming activities or the keeping of livestock. I suggest that the logic used to defend he Board of Health’s attempt to permit or deny agricultural uses is similar to the Town of Norwell’s attempt to permit/deny a farm stand by requiring application for and issuance of special permits. The Court of Appeals found that such prohibition was impermissible, but reasonable regulation was permissible. In essence, the application of the Town of Westport bylaw may not nullify a protected use ….

Third, the provisions of Chapter III Section 31 are vague … “make reasonable health regulations,” and do not speak to allowing or disallowing farming activities or the keeping of livestock. As such, there is an inherent tension between the right to farm and the current Board of Health bylaw. The proposed amendment merely seeks to clarify the contradiction while preserving the Board’s statutory duty through its ability to enforce state laws and regulations by which farming activities are reasonably governed.

Michael A. Kehoe

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