Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
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
