Mass. Appeals Court: Wood Processing Isn’t Protected “Agriculture”

In its decision last week in Blanche v. Zoning Board of Appeals of Westminster (pdf), the Massachusetts Appeals Court held that processing mostly imported logs into cordwood and woodchips on a parcel in the Town of Westminster (Town) is wood processing, not farming, so it doesn’t qualify as “agriculture” under M.G.L. c. 40A, § 3 (Section 3) or the Town’s local bylaws. Section 3 protects land used “for the primary purpose of commercial agriculture” and, since 2006, defines “agriculture” by reference to M.G.L. c. 128, § 1A (Section 1A).

From 2010 to 2020, plaintiff George Lipowczan harvested trees, cut the logs into cordwood, chipped the remnants, and sold the products. But by the plaintiffs’ own account, only about one-third of the trees he processed each year grew on the property. In May 2020, the Town’s building commissioner investigated an abutter’s noise complaint, found “imported piles of logs and imported wood chips” on the property, and ordered all wood processing to stop.

The plaintiffs appealed first to the zoning board, which upheld the order, and then to the Superior Court, which entered summary judgment for the board. The plaintiffs argued that “forestry or lumbering operations” is a freestanding category of agriculture, so hauling in logs and cutting them up qualifies by definition. The Appeals Court disagreed. Section 1A covers those operations only when “performed by a farmer . . . or on a farm as an incident to or in conjunction with such farming operations,” and Section 3 requires commercial agriculture as the land’s primary use. As the trial judge had concluded, the plaintiffs primarily used the property to process wood for resale, not to grow and harvest trees. Their reading, the court observed, would allow the exemption “to be manipulated and twisted into a protection for virtually any use of the land as long as some agricultural activity was maintained on the property”, quoting Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 847 (1994).

The plaintiffs fared no better under the Town’s bylaws, which the court read as incorporating the same definition of agriculture and the same primary-purpose requirement. The Appeals Court affirmed the Superior Court judgment, leaving the cease-and-desist order in place.