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Massachusetts Ruling on Agricultural Exemption for Open Burning

The Massachusetts Court of Appeals recently handed down a decision in the case of Holland Fire Department v. Lamountain, et al that upheld the right of an agricultural landowner to burn agricultural materials without obtaining a burning permit. The court also upheld the requirement that the local fire chief approve of the burning.

In 2009, the Town of Holland Fire Department filed suit against James P. Lamountain and Northeast Concepts, Inc. after they repeatedly responded to his 75 acre parcel for open burning. The department sought a permanent injunction to prohibit him from burning without a permit.

Here is a copy of their complaint:  2009-09-25-complaint-09-935-fire-dep-v-LaMountain-Northeast

Lamountain’s defense was that his operation was agricultural in nature and subject to an exemption under Massachusetts law. The trial court concluded that Lamountain’s business qualified as an agricultural operation and thus was subject to the exemption. The court also ruled that any such agricultural open burning is “subject to the permission of the local fire chief which need not be in writing. Said permission shall be based solely upon whether or not appropriate meteorological conditions exist to ensure safe burning.”

The fire department appealed the trial court’s ruling alleging that even if Lamountian was engaged in agriculture (questionable since his original plan was to construct house lots), the material being burned was not a “direct result of the normal commercial pursuit of agriculture” but rather was the result of land clearing.

The appellate court concluded that the trial court made a finding of fact on the material being burned that was not “clearly erroneous”, and affirmed ruling.

Here is a copy of the Court of Appeals ruling. 2012-06-26-docket-2011-P-1166-Decision

 

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Comments - Add Yours

  • john murphy

    In Washington State the rule has been clearly defined under the auspices of the Department of Natural Resources (DNR) as it deals with outdoor burning. In many cases there is an agriculture exception but in the case of land clearing for development, the developer is responsible for trucking or grinding the debris as burning this debris piles(s) have been prohibited in the Clean Air Act for Washington. Agricultural field burnings are permissible but with permits from Department of Natural Resources and notice to the Fire Department. At times the fire department in a particular local jurisdiction DNR has granted the fire department to issue permits and monitor the burns. We see this practice a lot in eastern Washington due to the large agriculture presence.

  • john murphy
  • http://firelawblog.com Curt Varone

    Thanks John

    In the Mass case it appears the developer bought 2 pigs and some chickens and sought to take advantage of the agricultural exemption.

    The FD argued that what was being burned had nothing to do with his pigs, chickens, or agriculture and was nothing more than landclearing. The landower countered that he wanted to create some “pastures”.

    The trial court said that was permissable as agricultural. The Court of Appeals refused to reverse. At the end of the day the landowner still needs the fire chief’s permission to burn.

  • john murphy

    Hey, I have some pig and chicken in my freezer – sounds like a Bar B Q, not agriculture. Interesting case

  • stefan

    i guess the courts got snowed over on this one.