10/15/2007 Annual Town Meeting - Laserfiche WebLink

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sale,based upon either gross annual sales or annual volume,have been produced in Massachusetts on land other than that on which the facility is located, used for : the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture,whether by the owner or lessee of the land on which the facility is located or by another, except that all such activities may be �. limited to parcels of 5 acres or more in area not zoned for agriculture, aquaculture, silviculture,horticulture, floriculture or viticulture. For such purposes, land divided by a public or private way or a waterway shall be construed as 1 parcel. No zoning. . . by-law shall exempt land or structures from flood plain or wetlands regulations established pursuant to the General Laws. For the purposes of this section, the term"agriculture"' shall be as defined in section IA of chapter 128, and the term horticulture shall include the growing and keeping of nursery stock .� and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished,maintained and managed while on the premises. r (Emphasis added) General Laws Chapter 40A, Section 3, states that all agricultural uses must be allowed as of right on land zoned for agriculture and on land that is greater than five acres in size; therefore, a municipality cannot restrict agricultural uses in those areas. A municipality is allowed to restrict agricultural uses on land less than five acres that is not zoned for agriculture. Thus, it would be inconsistent with state law to prohibit, require a special permit, or unreasonably regulate agricultural uses that enjoy the protections accorded under G.L. c. 40A, § 3. In approving the amendments adopted under Article 18, we point out that establishments for the breeding, sale, and boarding of dogs may be considered agriculture and subject to the protections provided under G.L. c. 40A, § 3. See Sturbridge v. McDowell, 35 Mass. App. Ct. 924, 926 (1993). Iri instances where these establishments enjoy the protection accorded under G.L. c. 40A, § 3, it would be inconsistent with state law for the by-law, as applied, to unreasonably regulate require a special permit or prohibit these activities. Thus, we caution the town to apply the amendments adopted under Article 18 in a manner consistent with the protections given to agriculture under G.L. c. 40A, § 3. [J Article 19 - The amendments adopted under Article 19 amend Subsection 174-25.A(15) of the town's Table of Use Regulations by adding the letters "SP"under the C-3 column to indicate that congregate care and assisted living facilities are allowed by special permit in the C-3 commercial zoning districts. In approving the amendments adopted under Article 19, we caution , the town that G.L. c. 40A, § 3, prohibits discrimination against disabled persons and provides in pertinent part as follows: Notwithstanding any general or special law to the contrary, local land use and health and safety laws,regulations,practices, ordinances,by-laws and decisions of a city or town shall not discriminate against a disabled person. Imposition of health and safety laws or land-use requirements on congregate living L arrangements among non-related persons with disabilities that are not imposed on families and groups of similar size or other unrelated persons shall constitute FAUSERS\RITCHIE\WP6I\DOCS\TOWNS\MASHPEE\#4506A DIS.DOC 2