Building Inspector of Mansfield v. Curvin

Cutter, J.

(concurring). I concur with the opinion, because

G. L. c. 40A, § 3, as appearing in St. 1975, c. 808, § 3, expressly provides that local zoning ordinances and by-laws *406 may not “prohibit, unreasonably regulate or require a special permit for the primary purpose of agriculture” even in areas not zoned for agricultural uses provided a parcel devoted to agricultural uses in such areas is greater than five acres. The Massachusetts decisions cited in the main opinion have treated piggeries in the past as inherently noxious and thus a nuisance to those exposed to piggery odors. One general purpose of zoning legislation has been to confine noxious or harmful uses to specified areas or to areas large enough to prevent the harm from adversely spreading to and affecting neighboring land. A piggery which became noisome could easily impede residential development in a town like Mansfield. Thus, I am less certain than the majority (see note 7, supra) that, in adopting the 1975 revision of c. 40A, the Legislature had in mind the Massachusetts decisions just mentioned, or that G. L. c. 61 A, § 1; c. Ill, § 1; and c. 128, § 1A, had been amended or enacted, respectively, in 1973, 1966, and 1960 to include in the term “agriculture” the keeping of swine, although that term perhaps is thought of as referring principally to the raising of crops. It may be that the legislative intention was to confine the regulation of piggeries to the prevention and prohibition of nuisances by local boards of health or other public authorities or by private suit and the common law of nuisance, rather than by local zoning legislation. See G. L. c. Ill (see, e.g., §§ 125A, and 143, each as amended or affected by St. 1985, c. 613, §§ 2, 2A, & 3). The relationship among the relevant provisions of chapters 40 A, 111, and 128, is not wholly obvious or clear. If the present decision under c. 40A does not carry out the legislative purpose, legislative clarification well may be appropriate.