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

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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