HomeMy WebLinkAboutMiscellaneous - 143 LACY STREET 6/18/2013 Land In Agricultural Use (LIAU)
To qualify for the Agriculture Exemption, land must be in agricultural use.
The Agriculture Regulations are quite specific about what constitutes land in agricultural or aquacultural
use:the exemption applies only to those land areas within the farm gate that presently and primarily are in
production or that customarily and necessarily are related to production.
Thus,bringing abandoned land back into production(see discussion below),opening new land to farming
(enlarging a farm enterprise into previously unaltered resource areas),or creating new access roads and
ways or work areas are not exempt activities because the land in question is not presently and primarily in
or related to production.
(Certain improvement activities are an exception to the rule just stated,that land must be"presently and
primarily in production"or"customarily and necessarily related to production"to qualify for the
Agriculture Exemption.These activities-the squaring off of field edges and the creation of certain water
control structures-are described later in this Guide. Otherwise, it is NOT considered exempt to convert
so-called related land to cropland.)
The Agriculture Regulations also stipulate that,to be exempt, land must be used in producing or raising
agricultural commodities for commercial purposes.The definition of"commercial"is discussed below.
Active vs. Inactive Land
Although the land must be"presently and primarily"in agricultural use,the definition allows it to be
"inactive"for up to 5 consecutive years without losing exempt status-or longer, if the land is inactive as
part of a USDA contract pursuant to the Conservation Reserves Program. For example, a field or pasture
may be out of use temporarily because of changes in enterprise,a financial situation,or as a strategy to
manage weeds or fertility; still,it is considered land in agricultural use for up to five years.Land that
currently is inactive as part of an active rotation is considered land in agricultural use.And a field that is
fallow-that is,plowed but unseeded-is not considered inactive.
Land under the jurisdiction of the Wetlands Protection Act that has been out of production for longer than
five years(without being under USDA contract)is considered new land.Farming activities proposed for
such areas are not exempt and therefore require a permit(an Order of Conditions)under the Wetlands
Protection Act.Thus, a pasture that has not been grazed or managed at all during the past five years is not
considered land in agricultural use,even though fencing still surrounds it.
It is proper for a Conservation Commission or DEP to require documentation of the extent and the timing
of agricultural use. Such proof could be aerial photography, a USDA farm plan,hay receipts,or ASCS
cropping records.
Land in Production
"Land in Production"is one kind of land in agricultural use as defined by the Agriculture Regulations. It
is that portion of the farm presently and primarily used to produce or raise agricultural commodities for
commercial purposes.A field of corn, a fenced pasture of grazing sheep,an orchard,a chicken yard, a
pick-your-own strawberry patch-all of these are clear examples.The area of a forest under active
management also is considered productive land.
Necessary and Related Land
"Necessary and related land"is the other kind of land in agricultural use as defined by the Agriculture
Regulations.It is the portion of the farm that is"presently and primarily used in a manner related to, and
-- ---customarily and necessarily used in,-producing agricultural commodities."_These are areas of the farm
that are not productive cropland but that are essential to the operation of the farm because they support
existing land in production.Examples include: existing access roads and ways; composting areas;barns
and sheds; fire ponds; livestock crossings;woodlot landings; and field edges.
Related land also includes those areas where water management activities take place, such as: pond inlets
and outlets; accesses; field surface and subsurface drainage systems,including pipes and outlets;
pumphouses;and permanent or temporary culverts.
Related areas may be used continually, such as an access to a field; seasonally, such as the area set aside
for the burning of orchard prunings; or infrequently, such as a sand pit for cranberry bog sanding.All of
these areas are integral and necessary components of active enterprises.
Definition of Commercial
According to the definition of"land in agricultural use" at 310 CMR 10.04(Agriculture)(a),the land in
question must be used to produce or raise certain agricultural commodities"for commercial purposes."
What distinguishes commercial purposes from non-commercial purposes?
The American Heritage Dictionary(Second College Edition, 1985),gives the following relevant
definitions:
"La.Of or pertaining to commerce." ["Commerce,"in turn, is defined as"The buying and selling of
goods."]
"3. Having profit as a chief aim."
Using these definitions, a"commercial purpose"can be characterized by two key elements: first,the
activity of selling; and second,the goal of making a profit.It is not enough to have one without the other-
both elements must be present. Whether they are present must be determined on a case-by-case basis.
Examples
It is not possible to give an exhaustive list of examples that will cover every question that might arise
about the meaning of the word"commercial."The following examples,therefore,are meant as
illustrations only:
Q. For many years, Ms. Smith has grown strawberries on her property.A portion of the crop grows in
the 100 foot buffer zone to a resource area under the Wetlands Protection Act. Ms. Smith consumes some
of the strawberries herself. Some she gives away fresh to friends and relatives. The rest she turns into
preserves;she uses some of the preserves herself and, again, she gives the rest away. May she perform
"normal maintenance"or "normal improvement"activities, such as spreading compost, withoutfrling
with the Conservation Commission?
A. The answer is no. The land is not "in agricultural use"as defined in the Agriculture Regulations. Ms.
Smith is not selling the strawberries. She has no goal of making a profit.
Q. For many years, Mr. Jones has grown strawberries on his property.A portion of the crop grows in the
100 foot buffer zone to a resource area under the Wetlands Protection Act. Mr. Jones consumes some of
the strawberries himself. The rest he sells on weekends from his f ont porch to help cover his costs for
fertilizer, water, and the like. May he perform "normal maintenance"or "normal improvement"
activities, such as spreading compost, without filing with the Conservation Commission?
A. The answer is no. The land is not "in agricultural use"as defined in the Agriculture Regulations. Mr.
Jones is selling his strawberries, but he has no goal or expectation of making a profit. Note that whether
or not he makes a profit is not the issue -rather, whether or not he has "profit as a chief aim" is the
issue.- _ -
Q. Mrs. Green runs a stable. Her customers board their horses there. The customers take the horses for
rides on Mrs. Green's property. Some of the horse trails pass through wetlands and Mrs. Green clears
the trails to keep them open. She also raises and harvests hay,partly in wetlands resource areas and
buffer zones, which she feeds to the horses. The customers are charged for the hay that Mrs. Green
provides. Is Mrs. Green's land in agricultural use?
A. The answer is yes and no. Yes, the land where hay is raised and harvested is in agricultural use. The
hay is an agricultural commodity that is sold by Mrs. Green as part of her for profit activity in running
the stable. She could just as well sell the hay to a feed business and require her customers to supply their
own hay; instead, she has cut out the middle man. That does not affect the commercial nature of the
activity. However, the riding paths are not in agricultural use. Operating a stable is not commercial
agriculture because no commodity grown on the premises is sold. The services associated with the stable
-boarding, grooming, and feeding the horses-do not constitute raising an agricultural commodity. It
would be different if Mrs. Green bred horses for sale. Merely keeping them on the premises, however,
does not qualms the land used in that business for the exemption.
It is important to remember the significance of these activities not qualifying for the Agriculture '
Exemption. It does not mean that the landowner may not grow strawberries or operate a stable.It does
mean that before the landowner takes actions that would remove,fill, dredge,or alter a wetland resource
area or alter a Buffer Zone,he or she must file a Notice of Intent and receive an Order of Conditions.
Summary
To summarize,the exemption for normal maintenance or improvement of land in agricultural use must
meet the following tests:
• It is the work, or activity,that is exempt, and not the land itself.
• The activity must be considered normal.
• The activity must be considered maintenance OR
the activity must be considered improvement;AND
• The activity must occur on land in agricultural or aquacultural use.
If all of these conditions are met, the activity can qualify for the Agriculture Exemption. Before
the farmer may proceed with t
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