Current through Register 1531, September 27, 2024
In accordance with the terms of the APR, certain activities,
uses, and improvements require Departmental Approval. Such approvals are issued
in the form of a Certificate of Approval (COA) or Special Permit by the
Department, with or without conditions, pursuant to the following:
(1)
Certificate of
Approval. While generally accepted agricultural practices are
generally allowed by right in the APR, the terms of an APR may require an
approval for certain agricultural Structures, activities, practices, uses, and
improvements. The Department may, by issuing a COA, authorize those Structures,
activities, practices, uses, and improvements that the Department finds to be
consistent with APR, Massachusetts law, and regulations of the Department.
(a) Unless otherwise provided, a COA shall be
subject, at a minimum, to the following thresholds:
1. The activity will not result in the APR
Parcel having Impervious Surfaces greater than five acres or 5% of the Parcel,
whichever is less, or unless the APR provides a more stringent
threshold;
2. The activity will
minimize, to the fullest extent possible, the loss of quality agricultural
soils; and
3. The activity will not
interfere with or lead to the likelihood of future interference with
agricultural operations and will preserve, maximize, and realize the
agricultural potential of the parcel, and in addition will enhance or lead to
the likelihood of enhancing future agricultural operations.
(b) Actions requiring a COA may
include, but are not limited to:
1.
Construction of a Farm Stand;
2.
Construction of Housing for Farm Labor;
3. Construction of residential
dwellings;
4. Construction of an
alternative energy system;
5.
Construction of other agriculturally related structures;
6. Soil excavation; and
7. Subdivision.
(2)
Procedures for
Requesting a COA.
(a)
Application. An Owner shall submit to the Department
an Application, signed by the Owner on a form prescribed by the Department
describing the proposed use, act, or Structure requiring a COA.
(b)
Review and
Recommendation. Within 90 days of receipt of a completed
Application, the Department shall review the Application and may inspect the
APR Parcel.
(c)
Certificate of Approval. If an Application is
approved, the Department shall issue a COA in recordable form A COA may require
specific conditions including, but not limited to, requiring an Owner to post a
bond or other security. A COA may be transferable to a subsequent owner of the
APR Parcel only with approval of the Department.
(d)
Certificate of Approval
Denial. If an Application for a COA is denied, the Department
shall notify the Owner in writing of the denial. The notification of denial
shall contain a notice of a right to request a hearing before the ALPC, and the
Department may specify a time limit to request a hearing, not to exceed the
timing provided for in M.G.L. c. 20, § 23(c).
(3)
APR Parcel Owner
Responsibilities.
(a)
Performance of the COA Activities. Owner shall
commence the approved COA activities within one year of receipt of the COA. As
to a COA approving construction or excavation activities, the Owner must, in
addition, complete those approved activities within two years of the date of
receipt of the COA.
(b)
Interruption of the COA Activities. If unforeseen
circumstances or other factors prevent the Owner from complying with the
provisions of the COA, the Owner shall immediately notify the Department in
writing and immediately cease all further work or activity.
(c)
Nonconforming
Work. If the performance of the COA activities fails to conform to
the COA, the Owner shall, take all action necessary to end the nonconformity
including, but not limited to, restoring the APR Parcel to its prior condition,
removing any Structure, or ceasing work immediately.
(d)
Notice of Completion of the
COA Activities. The Owner shall, within 30 days of the completion
of the COA activities, notify the Department in writing.
(4)
Department
Responsibilities. Upon satisfactory completion of the COA
activities, the Department may perform the following:
(a)
Inspection of the COA
Activities. The Department may, within a reasonable period of
time, inspect the completed COA activities to determine compliance with the
terms of the COA.
(b)
Certificate of Completion (COC). The Department may
within a reasonable period of time after its inspection, if the COA activities
conform to the COA, issue a COC, if required, in recordable form and provide a
copy to the Owner.
(5)
Special Permit. A Special Permit is a Departmental
Approval that permits a certain non-agricultural activity or use that does not
Defeat or Derogate from the Intent of St. 1977, c. 780. All applicable
provisions of M.G.L. c. 20, § 23(b) and of other applicable statutes,
unless otherwise provided by the applicable APR, shall govern the granting of a
Special Permit. In connection with the Special Permit, the following specific
provisions are applicable:
(a) An Application
for Special Permit shall be granted only after the Department applies the
Agricultural Preservation Restriction Program Guidelines - Requests for a
Special Permit to Conduct Non-agricultural Activities or Uses on APR Land in
effect at the time of the Application;
(b) However, at a minimum, the Department may
grant a Special Permit if:
1. The APR Parcel
is being actively utilized for full-time commercial Agriculture;
2. The activity is minor, ancillary and
subordinate to the Agricultural use of the APR Parcel;
3. Such uses and activities are not
inconsistent with the purpose of the APR and shall not defeat nor derogate from
the purpose of this Restriction; and
4. The request is limited to uses and
activities requiring no new construction.
(c) An Owner who is granted a Special Permit
shall commence Special Permit activity within one year of issuance of a Special
Permit; and
(d) A Special Permit
shall have a maximum term of five years and may be renewed only at the request
of the Owner and with the approval of the Department.
(6)
Procedures for a Special
Permit.
(a)
Application. For all activities or uses requiring a
Special Permit, an Owner shall sign and submit to the Department an
Application, on a form prescribed by the Department, describing all proposed
non-agricultural activities or uses.
(b)
Review and
Recommendation. Within 90 days of receipt of a completed
Application, the Department shall review the Application, and may inspect the
APR Parcel.
(c)
Issuance of Special Permit. If an Application is
approved, the Department shall, within a reasonable amount of time, issue a
Special Permit in recordable form. A Special Permit may require an APR Parcel
Owner, among other conditions, to post a bond or other security satisfactory to
the Department for completion of the activities required.
(d)
Denial of Special
Permit. If an Application is denied, the Department shall notify
the Owner in writing of the denial. The notification of denial shall contain a
notice of a right to request a hearing before the ALPC, and the Department may
specify a time limit to request a hearing, not to exceed the timing provided
for in M.G.L. c. 20, § 23(c).
(7)
APR Parcel Owner
Responsibilities. The Special Permit shall set forth, at a
minimum, the following specific obligations to be met by the Owner:
(a)
Registry
Recording. The Owner may record it with the appropriate Registry
of Deeds at Owners' own expense and provide the Department with a copy of the
recorded document.
(b)
Unforeseen Circumstances. If unforeseen circumstances
or other factors prevent the Owner from complying with the terms of the Special
Permit, the Owner shall immediately notify the Department in writing.
(c)
Nonconformity with Special
Permit. If the Owner fails to comply with the terms of the Special
Permit, the Owner shall take such remedial action to end the nonconformity,
including, but not limited to, bringing the activity into compliance with the
Special Permit, and restoring the APR Parcel to its prior condition.
(8)
Other Department
Rights. At any time during the initial or renewed term the
Department may, in its discretion, conduct an inspection to ascertain
compliance with the Special Permit.
