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By Kathleen A. Reagan, Esq.
The factors of urban sprawl and underfunded towns hungry for more revenue have combined in recent years to produce a new flashpoint for farms and horse farm owners in the form of increasing efforts by local governments to restrict farms and horse operations.
For example, in recent months, I've noticed towns and municipalities attempt the following restrictions:
- Restricting horseback riding over riding trails in favor of All Terrain Vehicles (ATVs) by using health concerns about manure as a pretext;
- Passing a home rule petition aimed at regulating and restricting the farming operation of one pig farm located within town limits, which if passed on a statewide level, would have far reaching implications for all agricultural farms in that state; for the text of this petition click here;
- Imposing $100,000 in betterments taxes upon a horse farm owner for 5 house lots that don't exist on the property, which unfortunately for the farm owner, was not protected by farming protections under state farming laws because the owner had declined.
In this state, the law allowed the town a first right of refusal on any property so classified;
- Requiring a hazardous waste hauling permit for the transportation of cow manure over city streets.
All of these efforts have one issue in common and most people are not going to like it, but it's necessary; and that is the fact that lawyers need to join the battle right away.
Where this doesn't happen, it's usually because most farm owners are underfunded themselves, so hiring legal help is typically not the first response of the landowners involved.
Instead, most farm owners do their best to "work with the system".
This is a natural reaction, but it can have dire consequences if these same farm owners fail to protect their legal rights.
As all of these farmers are learning, when dealing with municipalities, good legal help is a necessity.
Here's why:
Local governments are accorded wide latitude by the courts.
This zone of deference is conferred because, by and large, municipal authorities need to have discretion to carry out their function, which is to ensure safe and effective local government.
By the same token, the give and take of town actions in and against local residents necessarily produces conflict, in which the courts will not intercede unless and until they must.
But this wide latitude has stark limits: town officials must act according to town bylaws and municipal regulations, and they must act fairly, providing equal treatment to town residents.
So when and how do courts get involved to decide issues?
Only when all avenues of administrative appeal at the town level have been exhausted, and then only if these appeals have been exercised in a timely fashion.
The windows of appeal on town action are usually very narrow: ten to twenty days is common.
This last bit is worth stating again for emphasis: a resident who is aggrieved by a town action will lose the right to protest if he does not file his appeal within the window of appeal.
If he does file an appeal timely and to the appropriate parties, then, and only then, will an application to a court have a chance of succeeding.
The threat of municipal interference, then, should be taken seriously and acted on promptly.
More resources for dealing with towns and municipalities can be found at local farm bureau organizations.
Also, make sure that any legal help you retain has the necessary experience in agricultural and equine matters.
Many attorneys may have real estate experience, or municipal experience, but such general experience is usually not enough to help a horse farm or a horse farm owner.
This area of the law is extremely specialized, and most lawyers simply won't know what they don't know, and may be tempted to take the case on before they realize how underprepared they really are.
The lesson here for farmers and horse owners is, DO NOT sit on your rights.
Get appropriate legal help quickly!
Kathleen A. Reagan, Esq. is an equine attorney practicing in Braintree, MA, available at www.kathleenreaganlaw.com, has developed a course in equine law at www.concordlawschool.com, and is co-founder and Vice President of QueryHorse, the largest horse information resource on the Internet.
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