HomeMy WebLinkAbout1.0 Application- ---- - - - - - --_- -_-0--= 7 ~~----------
--• RECORD OF CONVERSATION I
':>ATE:_________ OUTGOING:• ---------
FURTHER ACTION REQUIRED'----------------------
SIGNED : _ _,2-ii('--_ ~,__.,__,tL;;;~=--'--------
-------. ..,,
COLORADO DEPARTMENT OF HIGHWAYS
STATE HIGHWAY ACCESS PERMIT
THE PERMITTEE;
Steven P. Mccarney and Mary Mccarney
SH No/MP/Side: 82/12. 5/l
Local Jurisdiction: Garf i e 1 d County
Dist/Section/Patrol: 30212
is hereby granted permission to construct and use an access to the state highway at the location noted below.
The access shall be constructed, maintained and used in accordance with the terms and conditions of this permit,
including the State Highway Access Code and listed attachments. This permit may be revoked by the issuing
authority if at any time the permitted access and its use violate any of the terms and conditions of this permit. The use
of advance warning and construction signs, flashers, barricades and flaggers are required at all times during access
construction within State right-of-way in conformance with the MANUAL ON UNIFORM TRAFFIC CONTROL
DEVICES, Part VI. The issuing authority, the Department and their duly appointed agents and employees shall be held
harmless against any action for personal Injury or property damage sustained by reason of the exercise of the permit.
LOCATION:
On the north side of State Highway 82, a distance of 2640 feet east
from Mile Post 12.
ACCESS TO PROVIDE SERVICE TO:
8,000 Sq. Ft. nursery/greenhouse and 4 single family residences.
OTHER TERMS AND CONDITIONS:
Approach is permitted as currently constructed.
MUNICIPALITY OR COUNTY APPROVAL
Required only when the appropriate local authority retains issuing authority.
By (X) Not Required Date Title __
Upon the signing of this permit the permittee agree.s to ths terms and condilions and referenced attachments contained
herein. All construction shall be completed in an expeditious and safe manner and shall be finished within 45 days from
initiation. The permitted access shall be completed in accordance with the terms and conditions of the permit prior to
being used. The permlttee shall notify _ _...,_~-------------------------
with the Colorado Department of Highways In at _______ __,
at least 48 hours prior to commencing construction within the State Highway right-of-way.
The person signing as the permittee must be the owner or legal representative of the property served by the permitted
access and have lull thorlty to ept the per t and all It's terms and conditions. I
Permlttee (X) __,l(d_~~~L-f-!k.,~~~~---------Date ~1-1/'-'-J,50-./-/-"'t,<t;_.C"--
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COPY DllTRllUTION: Required;
1. District fOriginal}
2. Applicant
Make copies aa neoeJtary tor:
Local Authority~/ Inspector
MTCE Patrol Traffic Engineer
Previous Editions are Obsolete and will not be UMd
OOH Fonn 101
9185
3. Staff ROW ------------
Th• tollowlng paragraph• ara pertlnen.A.lght1 ol the State Highway Acce11 Code. T•••e provided tor your convenience but
do not allevlate compliance )llllth an oecJ!llllr." ot the Acce11 Code. A copy ot the State Hl=y Acce11 Code la avellable from your
local l11ulng authority (local government) or the Slate Department ot Highway• (Department). When Ihle permit we1 l11ued, the
l11ulng authority made 111 decision baaed In part on Information 1ubmllled by the eppllcenl, on the ecce11 category which le
.. algned lo the highway, whet alternallve acceu to other publlc road• end 1treet1 l1 available, and aatety and dealgn olandarde.
Change1 In uae or dealgn not approved by the permit or the l11ulng authorlly may cause the revocellon or 1u1pen1lon ot the permit.
Appeal1
1. Should the permittee or applicant chose to object to any of the terms or conditions of the permit placed therein by the
Department, an appeal must be filed with the Colorado Highway Commission within 60days of transmittal of the permit for
permlttee signature. The request for the hearing shall be flied In writing and submitted to the Colorado Highway
Commission, 4201 East Arkansas Avenue. Denver, Colorado 80222. The request shall Include reasons for the appeal and
may Include recommendations by the permittee or applicant that would be acceptable to him.
2. The Department may consider any objections and requested revisions at the request of the applicant or permlttee. If
agreement is reached, the Department. with the approval of the local issuing authority (if applicable), may revise the permit
accordingly. or issue a new permit, or require the applicant to submit a new application for reconsideration. Changes In the
original application, proposed design or access use will normally require submittal of a new application.
3. Regardless of any communications, meetings, or negotiations with the Department regarding revisions and objections to
the permit, if the permittee or applicant wishes to appeal the Department's decision to the Commission. the appeal must be
brought to the Commission within 60 days of transmittal of the permit.
4. Any appeal by the applicant or permittee of action by the local issuing authority when it Is the appropriate local authority
(under subsection 2.4), shall be tiled with the local autt.urity and be consistent with the appeal procedures of the local
authority.
5. If the final action is not further appealed, the Department or local authority may record the decision with the County Clerk
and Recorder.
11 Conatrucllon atandarda and requirements
1. The access must be under construction within one year of the permit date. However, under certain conditions a one year
time extensio·n may be granted if requested In writing prior to permit expiration.
2. The applicant shall notify the office specified on the permit at least 48 hours prior to construction. A copy of the permit shall
be available for review at the construction site. Inspections will be made during construction.
3. The access construction within highway right-of-way must be completed within 45 days.
4. It is the responsibility of the permittee to complete the construction of the access according to the terms and conditions of
the permit. If the permittee wishes to use the access prior to completioni arrangements must be approved by the Issuing
authority and Department and Included on the permit. The Department or issuing authority may order a halt to any
unauthorized use of the access. Reconstruction or improvements to the access may be required when the permlttee has
failed to meet required specifications of design or materials. If any construction element falls within two years due to
improper construction or material specifications, the permittee is responsible for all repairs.
5. In the event it becomes necessary to remove any right-of-way fence. the posts on either side of the access shall be securely
braced with an approved end post before the fence is cut to prevent any slacking of the remaining fence. All posts and wire
removed are Department property and shall be turn.ad over to a representative of the Department.
6. A copy of the permit shall be available for review at the construction site. If necessary, minor changes and additions shall be
ordered by the Department or local authority field inspector to meet unanticipated' site conditions.
7. The access shall be constructed and maintained In a manner that shall not cause water to enter onto the roadway, and shall
not interfere with the drainage system in the right-of-way.
8. Where necessary to remove, relocate, or repair a traffic control device or public-or private utilities for the construction of a
permitted access, the work shall be accomplished by the permittee without cost to the Department or issuing authority. and
at the direction of the Department or utility company. Any damage to the state highway or other public right-of-way beyond
that which is allowed in the permit shall be repaired immediately.
9. Adequate advance warning is required at all times during access construction, in conformance with the Manual on Uniform
Traffic Control Devices for Streets and Highways. This may include the use of signs, flashers, barricades and flaggers. This
is also required by section 42-4-501,C.R.S. as amended. The issuing authority, the Department and their duly appointed
agents and employees shall be held harmless against any action for personal injury or property damage sustained by
reason of the exercise of the permit.
Ill Changes In use and violations
1. If there are changes in the use of the access, the access pe'rmit-issuing authority must be notified of the change. A change In
property use which makes the existing access design or use in non-conformance with the Access Code or the terms and
conditions of the permit, may require the reconstruction or relocation of the access. Examples of changes in access use are;
an increase in vehicular volume by 20 percent, or an increase by 20 percent of a directional characteristic such as a left turn.
The issuing authority will review the original permit; ii may decide it is adequate or request that you apply for a new permit.
2. All terms and conditions of the permit are binding upon all assigns, successors-in-interest and heirs.
3. When a permitted driveway is constructed or used In violation of the Access Code. the local government or Department may
obtain a court order to halt the violation. Such access permits may be revoked by the issuing authority.
IV Further Information
1. When the permit holder wishes to make improvements to an existing legal access, he shall make his request by filing a
completed permit application form with the issuing authority. The issuing authority may take action only on the request for
improvement. Denial does not revoke the existing access.
2. The permittee, his heirs, successors-in-interest, and assigns, of the property serviced by the access shall be responsible for
meeting the terms and conditions of the permit and the removal or clearance of snow or ice upon the access even though
deposited on the access in the course of Department snow removal operations. The Department shall maintain In
unincorporated areas the highway drainage system, including those culverts under the access which are part of that system
within the right-of-way.
3. The issue date of the permit Is the date the Department representative signs the permit which Is after the permlttee has
returned the permit signed and paid any required fees.
4. The Department may, when necessary for the improved safety and operation of the roadway. rebuild, modify, remove. or
redealgn. lho highway lnaludlng any IUKlllary lano.
5. Any driveway. whether constructed before, on, or after June 30, 1979, may be required by the Department, with written
concurrence of the appropriate local authority, to be reconstructed or relocated to conform to the Access Code. either at
the property owner's expense If the reconstruction or relocation Is necessitated by a change In the use of the property
which results in a change in the type of driveway operation; or at the expense of the Department if the reconstruction or
relocallon Is necessitated by changes in road or trafiic conditions. The necessity for the relocation or reconstruction shall
be determined by referenco to the standnrd.:;. set ':)rfh In the Access Code.
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October 18, 1985
TO: Garfield County Board of Adjustment/County Commissioners
SUBJECT: Protest of the Commercial/Retail Business_known as
Planted Earth.
We the undersigned are opposed to the commercial/retail aspect of
the business and location. We own a single family residence on the
property located adjacent to and north of the business known as
Planted Earth. We do not feel that a retail business is proper
for the area. As such, we request you deny the use as commercial/
retail.
\.le are unable to attend your meeting. Please accept this letter
as our input.
Sincerely,
I / -~-----C#U-e4--~~'-r;f
i/f aL Hurtig , C~-~-a-17£.~~
--1 Laura Hurtig y
12746 State Highway 82
Carbondale, Colorado 81623
~ L ft soo~:,~G -.-----
____ ------~----=--_:_~_:-~-------1?~1::_s@11.!~ . .• l /.' . ' : ' ~ '
ndscape Contractors (Cont'd)
:iEll'S lOVl l.ANOSUPIN'
COMMERCIAi. & RESIDElffiAl.
DESIGN • CONSTRUCTION
INSTALLATION
UCEJiSED • BOHOCD • WSURED
• SERVING lHE E~'TIRE VALLEY·
. Cl,~,
Duality Soll • DeUvered or Installed
Rain Bird Sprinkling Systems
Commercial • ResidenUal
lnstallaUons & Service
lrendling
Poww Raking •
Cah Ans ' PM weicor.
'6061t.yJl lh-625-\674
JDl'S IUU6ltal ](lMH.ryl? AsDen--923-4157
Im'• lawn I lrtt Semct
Zi6Sl S'J.nitfl' hie'-----rn-4l27
t:r~O~LOCK D[Vft(lrr.uNT INC~-
SH AD FOR BRLllN CRf
A.I. Tf'Tl.ID( WHOLfSAlf N
UNDEll t1URSEFU£5-ft..AHTS T1IE.ES ETC
129~MWI~ ARi«i 921-)04~
MOWING SERVICE
FERllllZATION & WEED CONTROL
PROGRAMS
lREE SPRAYING
SPRINKLER SYSTEM REPAIR
£STU.U.m Gl..AIK. Y GMM • IPO~ Jen ~mm. AdverttS.ing N'I the t.\ountain Bet Yelw-.1 · ~ll• tr. 96l-17)4
112)4~..u E1;.,,..====~9'!63-=20~89~ Pages tells them where to ge1 the ------------
product or service they want Yel1ow Pages -your ··buy-word··.
CO?t'IPLETE Lfil~DBCllPII!G
·.:.:i !_:-SERVICE · · -
llll) Gltr1 C.·t~•..'•'.'l.~f I ~J"H'''1 JI•
~f,~ ~:ltf ....... t:' !> ... "'"°'1 · ·--""" --·-~21·)~
r1r111r .\u Al ''"'''•I ,.,,
M C LANDSCAPING
002'1Mts.ll• ~-----961-el)J
Pluu .\rt Al T611 ,.,,
MOUNTAIN BUI( lURF fARJotS
~WAtl"O!"')oel~~5of'lf'ICt
Ms Sfrl' loc 2B9 .,..w-[~ --963-3991
MOUNT Al< WISJ EIMRON'41!TS llC
le5o1n.or-.,, ~irol"'b:or. !i. ... 1'19\------879-UU
rfr•M Srr Al 16iJ l'•f"
Mountai'I Wtst l:hY'l'orwnents h:
27•'SfrerMPI hrxrw-----'21>-tl>a
N"iernMl'I Garden tuner a. rnnticut
5lWlttWT6& 11 ""'-oot:!itw·l'llJ!>--M'-'>o
PUOI YllllY IMISl:RES & lAHllSCAPIJK
lfl&ttwyl St 76-26)1
PEDERSEI< 1.ANDSCANNG
HENRY J. PEDERSEN
SINCE 1950
COMPLETE LANOSC~PE
DESIGNING & CONTRACTING
21'1lai"r lo
Pwltte! l.iti 1714<H.,C ~-96J·l7JI
Rod. ~ tonstructioll -
1645 n. ~' Sr 16'-~
SOLAR LANDSCAPWG 4t5H•<:i ~-925-1266
P#eu .stt Al o,,,,_;,, f•tt
Don't spin yow Yfileels -· the~ Mountain . .
Bell Yellow Pages have been
des1gned lo make tho,. shoppmg lrlj)S
easier and more economical. Just thri.
· of the fuel you, ave: as wel as your
own_ time a_nd _ener»: _~you let '/OtX
fingers -do • ..the walUng. Re~. cal
aht<ld to' -· podUC:U. -. price$. ~ ·
,.
• •
'"Animal feed shop plus opens its doors at
Looking for ranch feeds for that
special cow or pig in your life! How
about a good ol' fashioned lariat or
horse wormer pastel
Althoueh su.r:h items nrahabJv .
opening last weekend to a packed
crowd, despite inclement weather.
· Manager Danny Moss said the
store was opened after valley
·resider:-ts kept traveling 10 5j11 fpr
• o•/ -
THE ROARING FORK VALLEY
. . --' . --.~~-.
Besides seed and feed, Hy·way
feed and Ranch Supply also carries
a complete line of chain link
equipment, barbed wire and a
variel'· a' aoim21 '2'2011' rabies
Planted Earth greenhouse plans opening Friday
Planted Earth Greenhouse near
Carbondale opens for business ·
Friday at its 12744 Highway 82
location. . .. .
The greenhouse ·and land·
scaping business is run i>y Mary
Mct.arney and will feature a selec·
tion of wildflowers, ·.herbs,
vegetables, perennials, ground '
covers, geraniums and bedding
plants.
~: McCarney was raised on a farm
and was an award-winning hor-
ticulture .instructor in Greeley with
more than 15 years' experience in
the greenhouse business. ·
Planted Earth employs about 10
people and is in the process of ex·
panding into a third "state-<>f-the-
art" solar greenhouse, designed by
McCarney's husband Steve, a solar
instructor at Colorado Mountain
BUSINESS·.:; .... _.
·.
OF THE
WEEK
CATALOG-SA1£S 'stJIVIC( .
'There's More Fo
Your Life At"
. .
945-2211
-··,
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College.
Others working at Planted Earth
are John Knipe, a former
greenhouse owner with more than
40 years' experience in floral
design. Basalt native Pat Derby has
six years in the business and Pat
Moss of Old Snowmass has been
working as a professional gardener
for 14 years. ·
. Planted Earth's phone number
is 963-1731.
Horseman's
1 Paradise : ·.
• We've. found this private
'horseman's paradise bid-
den away 3 miles west · of
Carbondale. Beautiful 3
. bedroom, 2~ bath ·taoch
home, barn, hay shed and
unfinisbed 2 bedroom, 1
bath bunkbouse. Privacy
is guaranteed on this. BLM
backed 5.3 acre hideaway.
Entirely· fenced for horses
and has room for arena
and corrals. $16S,000.00 .
Call David or Louise at
COLORADO COUNTRY,
n~
ASPEN BASALT
12Mtn. Plaza 351Hwy.81
925-2510 lD 917-31. 61 925-4418
• • c(
The 2,400 squar< '.>OI f
store is a spinoff of tr: exist
store. Because the Sil: stc.;-~
ger, some feed and olher •·
are stored there and_ brough:
~~
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UI
PURCHASE OROERS()l
Alpine Animal Hospitlll. •••••.••••
Alpine Bank ...•••••.••• , ..•• \ .••
AT&T •••••••••••••.••••••••••••
AT&T ••••••••••••••••••••••••••
AT&T •••••.••••••••••••••••••••
· 8 & R Toilet Rental. .•••••••••••••
John Bell. .•••.•••••• , •..••.••••
Harold Blue .....•.•••...•••..•••
Boise Cascade Building Materials .••
0. William Brehmer .•..•••.••••.•
Urbandale AUlo Supply •••••••.• o
Carllonclale Dnlg Store .......... .
Carbondale 66 Service ...••.••••••
Central Distributing. •••.••.•••.•• o
Terrilynn~ ................. .
Orde Supet" Valu .••..•••.••••.•••
Colorado Municipal l.e.,ue .••.••••
Jerry Colernt1n ..•••..••.•••..•••••
Colorado Dept. of Highways .••••••
Colo. State University ..•••..••..••
Colorado Dep.ilttfnPnl ol Revenue •••
T. Peter Craven .•..••...•.•.•••.••
Crystal S..w Selvice .••..••.•••••• -••
Crysta] Valley PrinteB .•.•••.••••••
J, £. OeVilbiH ...... , ••.•.••••••• ~
{)iamond lntemattonal. •..••••.•••
Dodson Engineered Products .••••••
tamest Repair Shop ..•••..••••••••
Elam Construction .••....••.•••.••
[Jmpr Glass Company •••••••••••••
O.ra~I Fleet. ...•••..••.••••••••
Fox Valiev Mar\:ing ~ems. .•••.•• · ea.r .. ld Countr Sheriff .......... __
Gk!nwood KWAL Paint. •••••••••••
Glenwood Post ................... o
Jonathan C. Grange •••••.•••.••••• ~
Ramona Griffilh .••.•••••••• '. ••••••
Daniel Gulick. . , .. : ••••••••••.••••
The Hardware Company ••••• : ••• ~ ••
Carl Holt« ...................... ..
Holy Cross Electric Assn •••.••••.••••
Holy Cross Electric Assn •••••••••••••
Holy Cross Electric Assn ..•••.•••••••
International Business Machines. .•.•
The Insurance C>ffice •••••••••••••••
L L Johnson Distributing. ••••••.•••
K&K Auto & Truck R~ir •..•••.••••
law Enforcement Equipment Co .••••
Little Engine Shop ................ .,
Max's Musk Company .....••••••••
Menlor Systems, Inc ...•••••••••••••
~~rnr~·::::::::::::::::::::
Mountain Bell .••••••.••••.••••.•••
Mountain Bea .••••.••••.•••••.••••.
Mountain Bell. •• , ••••.••••••••• ~ •••
Mountain Bel .••••••••••.••••••••••
...... ('id.
·" .... -;
• • agr
Growing elk presents a new option for ar::
El Jebel rancher-businessman
Floyd Crawford has been granted a
permit to operate an elk farm on
his land.
for Crawford, the move is an·
experiment in agricultural innova·
tion which may be a saving grace
for the troubled beef industry of the
region. .
Breeding elk for sales to res'
taurants and exotic game dealers is
not new to Western Colorado. but
It is rare. There is one operation
south of Craig in the northwest-
ern part of the state.
Crawford's endeavor, which
wrurlrl fpnr-p in
the animals raised on such farms
are basically the same as those in
the wild and taste the same. He
said the idea of elk farming is a very
popular concept these days and
that others in the area have infor;
mally expressed ail interest.
But while Seidel said he under-
stands the favorable economic
aspects"of raising elk rather than
cattle, he voiced concern about the
proliferation of elk breeding.
Because the elk farms require
high fences and relatively large
areas, he said the native elk, deer
and other wildlife ofthe state could . ., .
plains and some areas here, they
won't have any effect," Crawford
said.
for Crawford and others
looking to elk, there are some
dollars to be made.
"The whole picture of agricul-
ture has g()t to have some break in
it and this may be one . _ . just how
are we going to save any segment
of agriculture unless we get into
some other line," Crawford asked.
A cut above
While Crawford is getting 70
· ·.;,i for his beef cattle,
Elk not only provides a ~u~
meat product, but does so me
ficiently than beef animals. ~
said elk are four times as elf;cl'
the amount of food they eat
pared to the amount of meat
produce.
An added bonus produe<
the male (bulls) elk is a mark'
the anders in Korea and l.
where the material is crust...:
used as an aphrodisiac. W;
said the Koreans visit him reg•
to get the aQtlers.
"Don't ask me if it does
good, I'm not old enough tc
t
THE ROARING FORK VALLEY •..
'
·Greenhouse and Landscape.· .
• \Jo11111d1n <irmm /iJr ,\/;111111ui11 <iurckns.
Currying u wide sclccllon of l'crl·nnials, wllcl flowers.
hahs. \"Cl(l'lahl<;s,, hcddinl( plunls, gc-rqn!lll\t.s •. ;.
-. gro111.1d l''>'·~rs: _ ~-·. . · ~
01tcn 7 day~ a week .
Lol·a1cd IJ.: n111c cast of('.arbondalc-on If"-'\' H2
Hours 9-6 C.all 963-1731 ·
·-------------·---.. ~--•.·-. -·
ASK ME-·
-·· . . , . ,
HOMEOWNER
Tony Maddalone, City of Aspen Employee
."Ask me a1>c>ut BLUE!.AKE,_~he_y~_lley's_bes~ kept i:t_ome
--
-.... WA LT RAUSCHER A\' -. ' PERFORMANCE ENGINEERING
(303) 927-3304
Domestic & Foreign Auto Mechanics
91>en Mon-Fri 8-6, Sat 8-1 · · _ _ -•
Electrical . -· '4.~~,/"
Overhauls -· . · ,. ~ ~
Tune-ups ~,----.h::;::::--=-:,;= .... ,,~.:::-:;:;·_ -~
Engine modifications • ""'":~~--
. -·P~O. Box 857 """'""""""'"" 0035 ParlO>.ve~Basa1t; co 81621-· ........ YL ...... , ___ _
I THE RSP(.-.J C..0"1MuN• T'/ CJio.>~H
l:S HAVING (T'~ 81-ANNOAt_
• ··············•··········
fat;:
Carbondale foster dad has cared for 30 c
Daniel Alderfer has been father
to more than 30children in the past
seven years.
The 39-year-old Carbondale
resident is a foster parent, one of
only a handful in this end of Gar-
field County.
This foster dad is one of the best
around, says Mike McCormick
who works for the Garfield Coun-
ty Oepanment of Social Services.
Foster parents take in children
hn ·~ moved from troubled
abusive parents.
The foster parent program is de-
signed lo give children a place to
live comfonably until the natural
parents can work out their person-
al problems and have their child-
ren back, he said.
The foster parenting can be a
two-sided influence on his own
kids. While the experience is very
beneficial and educational for his
three children (ages 5, 12 and 14),
Alderfer said he has learned not to
lH~ ~a:A:~1NG ~o~:K\Yxtt~y~e::Lr.·~¥ .
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, .
Greenhouse and Landscape.
\lmmru/11 <in111·11 for .\lo11111ii1;, <iurck11~· . '
Currying u. wi<k~'SCkcllon cif l'crc;miuls:· wllci flowers.
lwrhs. \'Cfl<'t1.1hlc~, ~>edding p!unts~ gcrunlu111s.
· · ~··~ ,,,) ... _gro~tnd t'4)\'Ct:"S. '~<r.-:-·'~-. : .. -... •:· .
. Open 7 da~·~. a week . ·
J,tK'Utc..·d 1/2 mile cast ot'Carbonda1c ~n II\\'\" H2
Hours 9-6 C'.all 963-1731 . · '• •
·' '>:.
..
'.We ¥.'.ere already in the ~
enting business,". Alderfer sa
"when a friend said they knew (
need to pia~e a baby."
:~ '. .
. Th""at~was seven years ago; 0
the Alderfers got their license, ,
Great gifts for Dad!
Father's Day, Sunday, June 16 ·
Razors, Chess Sets, Pai:>'erWelghts, Hand
. Grips, Letterholders, Tape Dispensers, Steins·.
and a wide assortment 'of Father's Day
cards and other gifts. , .. '
. .rt·S. 'Round. f.L .-: . ·
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I.. ' . . •. . 0 D. :'· ·.'-.· . ., , .-. ~
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Items From 23 different countries·:··
...,1 .. '.I .. "" ..... , ........ ., ... • • • ' ,,, ers. even a ·:ras·1 l:U! 1.1 .• 11 •. ,1.1· .;1 1~ mlcrQ'!'aves, all guaranteed. July 5-9. All provisions and guides complete. Remote contro , . 119'1-.
· · · · • ·-----• •• • ·--· tar.b.comcuter_araDhlcsL Guaran" NH swather $2,500, 1282NH baler
7he ·
:':::::-gain Hunter
, _~·:-,ere your ad
is read
':'n purpose •••. I the
NOT
~'.! accident!
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,
?~~r;s · Po'stai Customer
.,
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WANT ADS THAT.WORK··
:' !ms July 3, 1985 Rtaehln1 A,pen, Basal,, Carbondale, RttJ5tone, G/enWt>Od SpT/n85, Nftill Castle, Silt. Rlfk. 'M~lur, ParadwU, A~ 4 Eat/'
.
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BULK FIA.TE
Perrr111 No U
Glenwood Sp11ng1.
COiorado a 1 eoz ·
-i Caro., Aoul• Pr•·Sofl
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178
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· Volume 6, Number 17 '--. 9;J
,., June Z6, 1985 · ]~
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IN(// ™ ' . ge ngs, s a 1 , ··-·---· • • 'I· \\)pjl '"'"'· Klog, Loo b~"'"'· Lo~; ''"'~·-"'~ j
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-'
D.?>ILAmrE~ ~m ·
Greenhouse and Landscapil'.19
SALE on Vegetables & Herbs
2 Plants for tire Price of ONE!
Sd// offering a wide selection of perennials, wild flowers,
"4rbs, vegetabla, bedding plants, xeranlums, grounds covers.
"-: . Retail Shop Closing oo June 30th, buy oowl ----
l.ocated ~ mile east of Carbondale on Hwy. 82'.
HOURS: 9-6 Call 963-1731
~a_n_[[1n·~ w'"',,,,:. nne~~~~. ~ Aftt WflDING·llUffL!RS u cl/ \W ~ • . t TftUCl·AUTO REPAIR . . . .
11 MARl•Esu~Ms *A 't Tune-Up V ' RENTALS U 0
l~· \}7 * M uffi er Repair " "''. ,!!! tr V/ r ~:
selection, $1,000 and up. ROY .
YATES, 923-9916 C?r 923-5191.· .... '3 .Prizes · . 1r. July ...
' . . SOUNDS EASY! VCR and movie
rental now open. In Basalt, 214
Midland, 10 a.m. to 7 p.m., Mon,,
Sat .. 927·4334, Great selection of
movle~f I•' ' , •,", nc 4Jtl$
'1989: FORESTER·. 19-foot
tandem-axle travel trailer, electric .
brakes. Gas and electric. $2,500 or
best offer. Call.876-5404. ••ie·
.'
3 Prizes
In August
·Free Hats!
For Fish Over 2 lbs.··
CARBONDALE .
DRUG
Crystal Village Plaza
Carbondale
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We the undersigned agree to join in filing a complaint with Garfield County
claiming a viql~J.ion of zoning codes by virtue of the business carried on
Steve and Marf~rney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
d1L.,.~~
Id r;, Cf If JliJ ( 6 ;2
() rvvbw. .!cv&. (~o fo ud-y-
• •
We the undersigned agree to join in filing a complaint with Garfield County
claiming a vio~~~ion of zoning codes by virtue of the business carried on
Steve and MaryYl\'.:Srney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
• •
We the undersigned agree to join in fi ~laiming a viqJ~tion of zoning codes b~in~ a complaint with Garfield County
teve and Mar:f'~arney on their v rtue of the business carried
Carbondale, Colorado 81623. property located at 12744 State Highwayo~2,
Id-7.<o jJc{) 1L g 2-
/d. 7_5 0 Hw1 ~ 8 1-
/27d~ i,Ly 6~c_
/~?V6 /~//i'L
• •
We the undersigned agree to join in filing a complaint with Garfield County
claiming §vviolation of zoning codes by virtue of the business carried on
Steve ancflMary Carney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
-\
• • •
We the undersigned agree to join in filing a complaint with Garfield County
claiming §,_violation of zoning codes by virtue of the business carried on
Steve and~'l'i:ary Carney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
MRS P F MC PHERSON
12'165 Hi'lY 82
CAR80NDALf CO 81623
/0,/c
p;'E>)&i
' .... • •
We the undersigned agree to join in filing a complaint with Garfield County
claiming a vi~t~tion of zoning codes by virtue of the business carried on
Steve and Mar>"~arney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
• •
•
• ,.,~
------------------------------ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
• •
BOA 10/24/85
PROJECT INFORMATION AND STAFF COMMENTS
REQUEST: An interpretation of Section 3.02.01, "retail
establishment for the sale of goods processed
from raw materials produced on the lot".
APPLICANT: Dan Kerst,
Thompson,
Luttrell.
attorney
James H.
in behalf
Hurtig and
of Gene
James H.
J. DESCRIPTION OF REQUEST: The Board of Adjustment has the authority to
hear and decide appeals of an administrative interpretation made in
enforcement of the Zoning Resolution. This authority is delegated in
Section 8.02.03(1). The applicant, in behalf of certain affected
property owners, believes that the sale of goods and merchandise from
a greenhouse, which were brought onto the property for the purpose of
resale, are not "goods processed from raw materials produced on the
lot" and conflicts with a staff interpretation of Section 3.02.01 of
the Garfield County zoning Resolution. Additionally, it is alleged
that the use of the property for residential purposes and a greenhouse
is a violation of Sectio~.2.02.52(1), which allows only "one principal
use" on a lot. (See attachments, pages £·'1 ) .
BACKGROUND INFORMATION: This request for interpretation is based on a
specific situation located on a piece of property at 12744 Highway 82,
Carbondale, co, owned by Steve and Mary Mccarney. Mr. & Mrs. Mccarney
constructed a 1440 sq. ft. greenhouse and started a business called
Planted Earth. The following is a brief list of products sold from
the business:
1. plants: annuals and perennials, some grown on site, others
purchased from wholesalers.
2. bulbs: purchased from wholesalers.
3. flower arrangements: made from flowers grown on and off site.
4. seeds: from plants grown on-site, grass seed.
5. potting soil, mountain peat.
6. Christmas wreaths and centerpieces.
7. clay, plastic and ceramic pots.
Subsequently, they initiated construction of a larger 6048 sq. ft.
greenhouse to expand the facility. The new greenhouse became an issue
due to the fact that the lot coverage requirement of 15% (Section
3.02.05) would be exceeded on the approximately 1.25 acre lot.
Subsequently, the McCarney's purchased an additional 10 acres of land
adjacent to the property, allowing them to add enough land to the 1.25
acre parcel to meet the lot coverage requirements, yet retain an
adequate amount of land in the recently purchase parcels to meet
minimum lot size requirements. The 10 acre parcel was previously
split into 3 parcels of approximately 3.0 + acres each through the
subdivision exemption process.
JI. STAFF COMMENTS I
A. There are a number of similar facilities in Garfield county that
have not obtained any land use permits for their operations.
These operations include the West Canyon Tree Farm, Spear's
Nursery and Helen's Greenhouse. All of these operations grow
products on-site and purchase products grown off-site for sale to
the public.
-1-
• •
B. Section 3.02.01 of the Ga field County zoning Resolution allows
certain agricultural uses as a use by right, including a "retail
establishment for sale of goods processed from raw materials
produced on the lot" and greenhouse, nursery operations.
Agricultural land is defined in Section 2.02.02 as follows:
Any parcel of land being used for tne primary purpose of
obtaining a monetary profit by raising, harvesting and selling
crops or by the feeding, breeding, management, and sale of, or
the products of, livestock, poultry, fur bearing animals, or
honey bees, or for dairying and the sale of dairy products, or
for any other agricultural or horticultural use of animal
husbandry or any combination thereof.
The basic question in this request is whether or not the products
sold from a greenhouse operation are "goods processed from raw
materials produced on the lot". In particular, plants and other
materials that are purchased from another wholesale business and
sold retail to customers. As noted previously, the McCarneys do
sell a number of products, some produced on the lot and some
started off the lot, and others that are typically associated
with a greenhouse operation. Any plant grown from seed in the
greenhouse is definitely a product produced on the lot. Plants
purchased from wholesale greenhouses and nurtured further in the
greenhouse have been found by the courts, to be products produced
from a nursery, even though their initial growth commenced
elsewhere. Additionally, it has been found by the courts that
the purchase and resale of some plants, especially at peak
periods, would not change the essential character of an
agricultural use. Based upon these decisions, the sale of plants
grown on the lot, nurtured further on the lot and sale of bulbs
and seed would fall within the parameters of agricultural
products produced on the lot.
Whether or not the sale of pots, potting soil, mountain peat,
Christmas wreaths and centerpieces fall within a general
definition of greenhouse is an additional question. There is no
definition in the zoning Resolution of a greenhouse or nursery.
Most zoning resolutions define the terms synonymously. Mesa
County defines greenhouse/nursery as follows:
"A wholesale or retail establishment engaged primarily in the
cultivation of and sale of plants and plant materials."
It is fairly customary for a greenhouse/nursery to sell products
related to the basic sale of plants, such as pots, soils, flower
arrangements etc. The question that arises from the sale of
these associated products is whether or not this changes the
basic greenhouse/nursery use into an agriculture-related business
which is defined as follows in Section 2.02.015 of the Zoning
Resolution:
"A business whose
retail sales or
defined under the
sole function is the provision of services or
products, agricultural in nature, as more fully
definition of Agricultural Land."
or, are these sales accessory to the primary use and would fall
within the definition of accessory uses, which is defined as
follows in section 2.02.11 of the zoning Resolution:
Incidental only to a lawful use, any use which complies with all
of the following conditions may be operated as an accessory use:
-,;-
• •
a) Is clearly incidental and customary to, and
associated with a lawful use;
b) Is operated and maintained under the same ownership
the same lot as the lawful use;
c) Does not include structures or structural
inconsistent with a lawful use; and
commonly
and on
features
d) Does not include residential occupancy
employees employed on the premises and the
such employees.
except by domestic
immediate families of
Previous interpretations and this particular situation have used
the accessory use interpretation as a basis for allowing other
greenhouse/nursery operations to sell certain related products.
It would seem difficult to say that the "sole function" of a
greenhouse/nursery is for retail sales, since agricultural
products are grown on the lot.
In summary, the staff interpretation has been to consider a
greenhouse/nursery operation as an agricultural activity, that,
as a matter of normal operation, has included the sale of plants,
plant materials and certain associated products,
c. Section 2.02.52 of the zoning Resolution says, "a lot is
restricted to one principal use". It has always oeen the Staff's
position that a residence is an accessory use to an agricultural
operation and falls within the previously noted definition of
accessory uses in section 2.02.011 of the zoning Resolution.
D. In discussions with Planning Departments in Mesa, Rio Blanco and
Pitkin Counties, this issue is somewhat of a "gray" area and they
have not had to make any similar interpretations.
III.SUGGESTED FINDINGS
1. That the appeal of an administrative interpretation of the
Garfield County zoning Resolution of 1978, as amended, was made
in a timely manner and in accordance with Section 8.02.03(1) of
said zoning resolution;
2. That the hearing before the Board of Adjustment was extensive and
complete, that all pertinent facts, matters and issues were
submitted and that all interested parties were heard at the
hearing.
3. That the Board of Adjustment has the
appeals concerning allegations
interpretation of these regulations
official of Garfield County;
authority to
of error
made by an
hear and decide
made in the
administrative
4. That an administrative official of Garfield county has
interpreted said zoning Resolution to allow a greenhouse/nursery
operation as an agricultural operation, that as a part of normal
operation includes the sale of plants, plant materials and
certain associated products in accordance with provisions
contained in section 3.02.01 of said resolution;
5. That said administrative official has interpreted said zoning
resolution to allow a residential use as an accessory use to an
agricultural operation and not to be in conflict with provisions
contained in Section 2.02.52(1) restricting a lot to one
principal use;
-J-
6.
•
That based
county Board
modification
on the facts presented
of Adjustment (choose
of one):
•
at the hearing the Garfield
one of th~, following or
a) sustains the interpretations of the administrative official
,.._-~-:r of Garfield county.
sustains the appeal of the interpretation of the
administrative official and finds that a greenhouse
operation does not allow for the sale of agricultural
rown entirely on the lot or the sale of
certain associate ducts, or a residence on the same lot.
sustains in part, the appeal of the interpretation o he
zoning resolution to allow a greenhouse to sell:
(1) plants and seeds grown entirely on the lot.
(2) plants and bulbs initially grown off the lot.
(3) accessory products such as potting soil, peat, flowe
pots, fungicides, insecticides, chemicals, humus
mulches and fertilizers.
(4) flower arrangements from plants being grown on the lot
(5) Christmas wreaths and centerpieces.
(6) grass seed and fertilizers.
(7) a residence as an accessory use to the greenhouse.
'
.. 4-
• •
SCHENK, KEHS'!' & DJ<JWINTER
ATTORNEYS AT LAW
JOHN A. SCHENK
DAN KERST
WILLIAM J. DEWINTER, Ill
Mr. Mark Bean
FIRST NATIONAL BANK BUILDING
SUITE 310, 302 EIGHTH STREET
HLEN\\'001> HPUINOS. COJA.lH:AllO 81001
{303) 945·2447
September 26, 1985
Director of Planning Department
Garfield County Courthouse
109 Eighth Street, Suite 303
Glenwood Springs, CO 81601
RE: Application -Mccarney Zoning Violation
Dear Mark:
I enclose herewith an Application filed on behalf of Gene Thompson,
James H. Hurtig and James H. Luttrell requesting the Zoning Board of Adjust-
ment to interpret Section 3.02.01 of the Zoning Resolution and to find that
the McCarneys' use and proposed use of their property for retail sales
violates the Zone District Regulation. I also enclose my trust account check
in the sum of $35.00 in payment of the Application fee, together with a
portion of the U.S.G.S topographic map showing the approximate location of
the subject property. I also enclose the completed Public Notice form to be
published and mailed in anticipation of the Board's regular meeting to be
held October 24, 1985. As I read the Zoning Resolution, I sm not sure that
it requires public notice for an appeal of this type as opposed to a Variance
Application which is provided for in Section 9.05.04. Although the publica-
tion and mailing is no problem in this regard, posting of the McCarneys'
property may be difficult, if not impossible, to accomplish without commit-
ting a trespass. Please provide me your thoughts in this regard.
DK/rec
Enc.
cc Gene Thompson
James H. Hurtig
James H. Luttrell
-~--
• •
APPLICATION
GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT
The Applicants, GENE THOMPSON, JAMES H. HURTIG and JAMES H. LUTTRELL,
by and through their undersigned attorney, hereby appeal to the Garfield County
Zoning Board of Adjustment pursuant to Section 8.02.03(1) and (2) of the Gar-
field County Zoning Resolution, as amended, regarding the interpretation by the
Garfield County Building Official of that portion of Section 3.02.01 of the
Zoning Resolution which reads as follows:
"Uses, By Right: Agricultural, including farms, garden, greenhouse,
nursery, orchard, ranch, small animal farm for production of poultry,
fish, fur-bearing or other small animals and customary accessory uses,
including buildings for shelter or enclosure of persons, animals or
property employed in any of the above uses, retail establishment for
sale of oods rocessed from raw materials roduced on the lot;"
emphasis added
Applicants believe that STEVE and MARY McCARNEY, owners of that real
property located in the Agricultural/Residential/Rural Density Zone District at
12744 Highway 82, Carbondale, Colorado, have used and propose to use said real
property in a manner and for a purpose not permitted by the above quoted Zone
District Regulation, namely the retail sale of goods and merchandise other than
those "processed from raw materials produced on the lot". Upon information
available to the Applicants, it is believed that McCarneys have carried on and
intend to continue carrying on the sale of goods and merchandise from the above
stated location, which goods and merchandise are brought upon the property for
the sole and express purpose of resale. Neither the clear language or the
intent of the above quoted Zone Regulation permits such activity, which acti-
vity.
Section 2,02.52(1) of the Zoning Resolution provides, in part, that "a
lot is restricted to one principal use". Applicants believe that McCarneys' use
of the subject property as above stated and for their residential purposes
violates this provision.
Section 1,07 of the Zoning Resolution makes the Regulations contained
therein applicable to the entire unincorporated area of Garfield County, Colo-
rado, within which the subject property of the McCarneys is located. Said
Section further provides, in part, that "no ••• land, building or structure be
used for any purpose or in any manner other than as provided among the uses
hereinafter listed in the Zone District Regulation for the District in which
such land, building or structure is located;". Section 11.00 of the Zoning
Resolution also provides, in part, that "in their application and interpreta-
tion, the provisions of this Resolution shall be held to be minimum require-
ments."
The Applicants have requested the Building Official of Garfield County
to enforce the provisions of the Zoning Resolution as applicable to the above
referenced actions of McCarneys and to take action as necessary to enjoin and
prevent the unlawful use of the subject property as hereinabove asserted. The
Building Official has failed and refused to take the action requested and this
appeal is in response thereto.
-(,-
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• •
Applicants hereby respectfully request the Board, in the exercise of
it powers as provided in Section 8.02.03 of the Zoning Resolution, to interpret
Section 3.02.01 of said Resolution to prohibit the use and proposed use of
McCarneys' property in the manner above described and to thereby authorize the
County Building Official to enforce the provisions of the Zoning Resolution as
so interpreted.
Respectfully submitted this 26th day of 1985.
Applicants:
Gene Thompson
James H. Hurtig
James H. Luttrell
Address:
c/o Schenk, Kerst & deWinter
302 Eighth Street, Suite 310
Glenwood Springs, CO 81601
(303) 945-2447
an ers ,
Attorney for Applicants
302 Eighth Street, Suite 310
Glenwood Springs, CO 81601
(303) 945-2447
Practical Description of Subject Parcel: Approximately one-half (~) mile east
of the intersection of Colorado State Highways 82 and 133, northerly of Carbon-
dale, Colorado.
Legal Description of Subject Parcel:
incorporated herein by this reference.
See Exhibit "A" attached hereto and
Present Zoning: A/R/FJ) --Agricultural/Residential/Rural Density
2
-7-
~·
• •
EXHIBIT "A"
PARCEL A
A tract of land situate in Lots 6 and 9, Section 27, Township 7 South, Range 88
West of the 6th Principal Meridian described as follows:
Beginning at a point on the North line of State Highway No. 82 whence the East
Quarter Corner of said Section 27 bears N. 74°23 1 30" E, 2,026.30 feet (being the
Southeast corner of that certain tract described in Book 334, Page 169, Garfield
County Clerk's Office); thence North along the East boundary of said tract a
distance of 250 feet; thence West a distance of 200 feet; thence South 51 feet;
thence East 11 feet; thence South 16 feet; thence West 11 feet; thence South a
distance of 183 feet, more or less, to the North line of Colorado Highway 82;
thence N. 89°20' E. along the Northerly boundary of Highway 82, a distance of
200 feet more or less, to the point of beginning,
PARCEL B
A parcel of land situated in Lot 9 of Section 27, Township 7 South, Range 88
West of the Sixth Principal Meridian, said parcel of land is described as
follows:
Beginning at the East Quarter Corner of said Section 27; thence S, 74°23'30" W,
2026,30 feet; thence North 250.00 feet to THE TRUE POINT OF BEGINNING; thence
West 200,00 feet; thence North 25.00 feet; thence East 200.00 feet; thence South
25.00 feet to THE TRUE POINT OF BEGINNING,
known as 12744 Highway 82, Carbondale, Colorado.
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• • • 114 PL 149 ATLANTIC REPORTER, 2d SERIES
8ll5 Pa. 157
Appeal of Harry KLEIN from Board of
Ad)u•tment of Town1hlp of
Sprlngftold.
Appeal Of BOARD OF COMMISSIONERS
OF SPRINGFIELD TOWNSHIP, DEL·
AWARE COUNTY, Appellant.
Supreme Court of PennsyJVanla.
March 16, 1959.
Building inspector of to\vnship revoked
~uilding permits of o\vner, and revocation
was sustained by board of adjustment ot
township. The Court of Common Pleas of
Delaware County, as of June Term, 1957,
No. 1155, Henry G. Sweney, P. J., entered
a· decree in favor o( the owner, and board
of commissioners of township appealed.
The· Supreme Court, Bell, J., No. 44, Jan-
uary Term, 1959, held that use of one acre
tract in "A" Residential District in to\vn·
ship to raise cut flowers, annuals, and ever·
greens and sell them and to' maintain a
grecnhous:e was a "farm'' use within mean·
ing of township zoning ordinance permit·
t~ng .use of. premises in an "A" Residential
District for "farm" purposes, though owner
intended .to buy some plants for resale,
especially at peak periods.
Decree affirmed.
I. Municipal Corporation• e=>621.63
Where amended ordinance deleting
11 fa~m" use from list of permitted uses in
an "A" Residential Zoning District in town·
ship was passed after valid issuance of
building permits authorizing erection of
greenhouse and workshop, amended ordi-
nanct w_as inapp~icable and could not justi-
fy i'evocatio'n of the permits.
2. Municipal Corporatlono e=>601(19)
When zoning ordinance permits owner
to use his property as a ~'farm", ordinance
by (\ccessary · implication perrriits U~e :of
property for such agricultural
as its size wilt permit.
See publication \Vorda and Phraaca,
for other judicial conatructlon• and deft-
nftions of 11 Farm".
3. Municipal Corporation& $0>601(22)
Zoning ordinance of township permit-
ting use of premises in an "A" Residential ·
District for ''farm" purposes includes right,
to sell what is grown on the land.
4. Munlclpal Corporations ¢:=1'601(22)
Use of one acre tract in "A" Residen~,
tial District in township to raise cut flowers,
annuals, and evergreens and sell them and·
to maintain a greenhouse v.'as a "farm" use .
within meaning of township zoning ordj:.:
nance permitting use of premises in an 11A"'-'
Residential District for "farm" purposes,.
though O\vner intended to buy some plants,
for resale, especially at peak p~riods. .
5. Munlclpal Corporations cS=:>G21.63
Where building permits for erection of.
greenhouse and workshop were validly iS•
sued by building inspector of township, per-
mits could not be arbitrarily revoked.
6. Munlolpal Corporallona e=>601(22) .1
Owner of one acre tract of land ill
"A" Residential District in township whcrt
premises could be used for ••farm'' purposCs
could not, under guise of a "farm" use en:.
gage in the admittedly commercial acti,·ity'
of buying plants for resale. '
Malcolm B. Petrikin, Chester, Frank
Truscott, Philadelphia, for appellant.
Edward H. P. Fronefield, Edward H.
Bryant, Jr., Lutz, Fronefield, Warner
Bryant, Media, for appellee.
Before CHARLES ALVIN JONES, C
J., and BELL, MUSMANNO, BENJAMIN
R. JONES, COHEN, and McBRIDE, JJ; .
BELL, Justice.
A building inspector revoked Harr
Klein's h1titding permit; the revocation wai·
sustained by th<
Springfield To•
1"hc lo"·er Cour
Adjustment had
cretion and s.ust
noard of Tow1
this appeal fron
Court.
The essential :
can be summari:
On November
tcred into an ag1
one acre of grou
side of State Roi
The property w
Article III, § 30:
ship Zoning Ore
at that time, per
the premises fo
"A" Residential
1956, Harry Kie
Duilding Inspec1
greenhouse and
ises. On Januar
spcctor issued ti
On January I
pleted settlement
uary 16, 1951, l
of the trees and
January 22, 195:
roof on the gar.
January 24, 1957
work ior $4,400
greenhouse. 011
tracted to buy a
paid $4,750 on a
legation of frauc
\vas no evidcnct
the part of Kleil
On January ;
spcctor notified J
mits were suspe
[I) On Mar<
Township Board
Ordinance No.
I. He also ente
tern for it,21
l!d SERIES A
:/
for such agricultural
e will permit.
publlcatlon Worda and Phr
h~r judlclal oon1tructlon1 and d
1111 of "Farm".
-'pal Corporatlono '8=>601(22)
ing ordinance of township pe
of premises in an 11A" Reside
for 11 farm" purposes includes r
:aat is grown on the land.
:pal Corporatlono e=>&Ol(22)
of one acre tract in 11A" Reif
rict in township to raise cut flo
and evergreens and sell them
~Jn a greenhouse v.•as a "farm"
,,caning of township zoning ·~
rmitting use of premises in an '.f
ial District for "farm" pur '
•\Yner intended to buy some pl'
ie, especially at peak p~riods. ·
lpal Corporation• <8=>621.63
:;re building permits for ercetio
'!e and workshop were valid1
Ui.iilding inspector of township;
Id not be arbitrarily revok ·
~pal Corporatlono '8=>601(22) .
!Cr of one acre tract of lari
!dential District in township
could be used for ''farm" pur:
t, under guise of a "farm" us~·
the admittedly commercial act1
~ plants for resale. '
~·ii B. Petrikin, Chester, Fra
, Philadelphia, for appellant.' .
d H. P. Fronefield, Edwar
Jr., Lutz, Fronefield, War'ii,
Media, for appellee. ·
CHARLES ALVIN JON
ELL, MUSMANNO, BEN]
<S, COHEN, and McBRIDE,'
l
• Justice.
ilding inspector revoked
:1ilding permit; the revocation,_
• • IN RE.KLEIN'S APPEAL Pa. 115
Cite as 1{9 A.2d 11{
ustained by the Board of Adjustment of ~pringficld Township, Delaware County.
The lo\vcr Court found that the Board of
:\<ljusuncnt had manifestly abused its dis-
cretion and sustained Klein's appeal. The
Hoard of Township Commissioners took
this appeal from the decree of the lower
Court.
1'he essential facts are not in dispute and
can be summarized as follows:
On November S, 1956, Harry Klein cn-
trrcd into an agreement of sale to purchase
one acre of ground for $23,000 on the south
side of State Road in Spring6c1d Township.
The property was zoned "A" Residential.
Article III, § 301, of the Springfield Town-
:.hip Zoning Ordinance which was in effect
at that time, permitted (inter alia) a use of
the premises for 0 farm" purposes, in an
",\"Residential District. On December 31,
1956, Harry Klein applied to the Township
Huilding Inspector for permits to erect a
greenhouse and a workshop on the prem-
ises. On ] anuary 14, 1957, the Building In-
spector issued the permits.
On January 15, 1957, Harry Klein com-
pleted settlement for the property. On Jan-
uary 16, 1957, Klein started to remove all
of the trees and clean up the grounds. On
January 22, 1957, he contracted for a new
roof on the garage at a cost of $292. On
January 24, 1957, he contracted· for masonry
work for $4,400 for a new workshop and a
J:rccnhouse. On January 29, 1957, he con-
tracted to buy a greenhouse for $6,250 and
paid $4,750 on account.I There was no al-
legation of fraud and the Court found there
\Vas no evidence or proof of bad faith on
1he part of Klein.
On ] anuary 31, 1957, the building in-
spector notified Klein that his building per-
rnits were suspended until further notice.
(!] On March 19, 1957, the Springfield
·rownship Board of Commissioners adopted
Ordinance No. 583 amending the Zoning
Ordinance by deleting "farm" use fron1 the
list of permitted uses in an "A" Residential
Zoning District. The amended ordinance,
having been passed after the valid issuance
of Klein's permits, is inapplicable to his
property and could not justify (as the
Board concedes) a revocation of his per-
mits. Shapiro v. Zoning Board of Adjust-
ment, 377 Pa. 621, 105 A.2d 299. On March
21, 1957, the building inspector notified
Klein that his building permits \vere re-
voked. Klein appealed the revocation and
was given a hearing by the Board of Ad-
justment on April 25, 1957. On June 27,
1957, the Board of Adjustment dismissed
the appeal on the ground that the proposed
use was not a "farm" use under the Zoning
Ordinance and therefore the permits were
illegally issued.
Klein testified that he intended raising
cut flo\vers, annuals and evergreens and
then selling them. He would grow these
plants in different ways, some from seed,
some from cuttings and some from pots
that are brought in and repotted. He fur-
ther testified that he would buy potted
plants when they were smaller and finish
them off. Raising and growing these plants
requires kno\vledge, time, experience and
skill.
The Board of Adjustment based its de-
cision on the testimony of Klein that, at cer-
tain seasonal periods of peak demand for
potted plants he would buy at wholesale
potted plants for resale. From this testi-
mony, the Board concluded that Klein's use
of his property was not within the per-
mitted "farm" use as he intended to engage
in "the commercial selling of shrubs and
. flowers with the cultivation of the soil and
the growing of the plants and shrubs inci-
dental thereto."
The Decree of the lo\ver Court reversing
the Board of Adjustment must be affirmed.
(2] A careful reading of the testimony
convinces us, as it did the Court below, that
Klein intends to use the land to grow
1· He also entered into a contract on February 5, 1057. to install a neu• heating sys. te1n for St,214.
• • 116 Pa. 149 ATLANTIO. REPORTER, 2d SERIES
flowers, shrubs and evergreens. The work-
shop and greenhouse are to be operated in
connection with this use. All parties agree
that a nursery and a greenhouse operation
is a farm use, even on a one acre farm.
Marple Tp. v, Lynam, ISi Pa.Super. 288,
30 A.2d 208. When an ordinance permits
an owner to use his property as a farm, the
ordinance by necessary implication permits
the use of the lot for such agricultural
specialties as its size will permit. Marple
Tp. v. Lynam, supra. In Gaspari v. Board
of Adjustment of Muhlenberg Tp., 392 Pa.
7, at page IS, 139 A.2d S44, at page S48;
the Court, speaking through Mr. Justice
Musmanno, held that the production of arti-
ficial compost was farming within the
meaning of the Zoning Ordinance, and
said:
"• • • • it para11els the case of
an orchardist who plants and culti·
vates fruit trees of various kinds and,
after they have attained a certain
maturity, sells them to fruit growers;
or the grower of tobacco plants, who
sets out the seed in specially prepared
beds and later removes the growing
slips for planting in his own fields, or
sells them to other farmers. No one
would contend that the Individuals
mentioned in the examples sug-
gested are engaged in manufacturing . . •.·,,
[3-S] Furthermore, "farm" use un~
doubtcdly includes the right to sell what
is grown on the land. Marple Tp. v. Ly-
nam, supra. The purpose and the essential
character of Klein's proposed use is farm·
ing and therefore the permits were validly
issued. Once validly issued the permits
could not be arbitrarily revoked. Shapiro
v, Zoning Board of Adjustment, 377 Pa.
621, IOS A.2d 299; Lower Merion Town-
ship v. Frankel, 3S8 Pa. 430, S7 A.2d 900.
[6] Nothing in this opinion is intended
to permit Klein under the guise of a 0 fai-m"
use to engage in the admittedly commerci
activity of buying plants for resale. Su .
a use wou1d be a violation of the ordi
nance 1 and subject Klein to appropria.
action for such violation. On the othe
hand, the mere buying of some plants fo
resale, especially at peak periods, woul
not change the essential character of
"farm" use. The buying for resale c&
not be of such amount or proportion as f
make the cultivation and sale of produc.
grown on the land a mere accessory t
Klein's commercial activity.
Decree affirmed, costs to be paid by a
pellant.
COHEN, J., concurs in the result.
o i .-~n"'•"u.°" .. ""m=,..,,..
'
Josooh KOTZIN
••
895 Pa.
PLYMOUTH TOWNSHIP ZONING BOA9'1
OF ADJUSTMENT.
Appeal of John M. KENNEDY, 111, Fred•
erlok w. Morrl1, 111 and Elkln1 ·
Wetherill, I ntervenor1.
Supreme Court of Pennsylvanla.
March 16, 1959.
.,,
Appeal from action of township zo
Ing board of adjustment denying exce
tion to zoning ordinance to permit '
to use land in residential zone for nonco
mercial swifnming club and day camp.
Court of Common Pleas of Montgomc ;
County, David E. Groshens, ]., at No •.
November Term, 19S7, granted order r'
versing action of board, and an appeal W
taken. The Supreme Court, Cohen,
No. SI January Term, 19S9, held that re
2. Appellant admits this anci testified that he would not use the property beyond the
llmlts prescribed b7 the Ordinance.
:S:OTZIN •·:
ord revealed tha1
manifest abuse of
that the granting
"·ould unduly affe1
the general welfa
Reversed.
1. Munlclpal corpci
Where appeal
Pleas from actio
board of adjustm
ceptions to zonini
n1ined solely on r1:
before board, re!
Court on appeal :
Con1mon Pleas re
was limited to det
in denying specia
n1anifest abuse Oj
law.
2. Munlclpal Corpo
An exception
has its origin in
only to such sitt
provided for and
ordinance, and ru
or refusal of ex«
mcratcd in ordinat
3. Munlclpal Corpa
On appeal f:
z:oning board of &•
exceptions to pct
residential distr
S\vimming club
<lay camp for ISO
that board comm
of discretion in .
of exceptions wo
safety and the ge
nity.
Elkins Wetheri
& O'Hey, Knox
for appellant.
William F. Fo:
man, Norristown,
• • 266 Mo. 377 SOUTH WESTERN REPORTER, 2d SERIES
SUBURBIA GARDENS NURSERY, INC.,
Plain tiff-Appellant,
••
COUNTY OF ST. LOUIS, Missouri, Maurice
Abram1on, Albert Balley, John Dowllng,
Ru1sell Grantham, John O'Hara, Comprls·
Ing All of the County Councll of the Coun•
ty of St. Loult, Mltsourl, and Jame1 H. J.
McNary, Supervl1or of the County of St.
Louis, Missouri, Defendants-Respondents,
and
Miidred Ann Krekeler, Intervenor-Appellant.
Miidred Ann KREKELER, Plalntlff•
Appellant,
••
SUBURBIA GARDENS NURSERY, INC.,
Defendant-Appellant.
No. 50079.
Supreme Court ot Missouri,
I. Zoning ¢:::>279
A "nursery" within zoning
permitting prc1nises to be-used for "for
nurseries, fartns and truck gardeninf·
an area where trees, shrubs, or plants
grown for transplanting, for use as st"
for budding and grafting, or for sale .. •-
See publication Word& and Phraae1"t
for other judicial con11tructiona: an ·
definitions.
2. Zoning e=>283
"Business" within 7.oning ordina
prohibiting business in certain territor-·
a commercial or mercantile activity cust.
arily engaged in as a means of livetih'
and typically involving some indCpend··'
of judgment and power of decision.
See publication Words and Phraae8
for other judicial construction• and.
definitions.
3. Zoning P231, 233
En Banc.
April 13, 1964.
In determining meaning of ordin~:·
or statute pertaining to zoning, as :
as other subjects, courts generally see
d ascertain intention of lawmak~rs by giV.
Consolidation of declaratory judgment<-; words used their ordinary meariing;
action and suit in equity for injunctive and t considering entire act and its purposes;··
other relief involving determination of .~-by seeking to avoid unjust, absurd, -ti'ti
activities in which a nursery may engage > sonable, con6scatory or oppressive r~S
in a district zoned for that purpose and :~ -·f
others. From a judgment of the Circuit h 4. Zoning ¢:::>279
Court, St. Louis County, Jack P. Pritchard, ~ An activity that is a reasonably ne
Special Judge, the plaintiff and intervenor sary incident to nursery business will,•
appealed. The Supreme Court, Storckman, be deemed to be 0 the conduct of a busin ·
J., held, inter alia, that a zoning ordinance in violation of zoning ordinance cxceP
permitting nursery business permitted main-from prohibition the nursery business ,,;.
tenance of quarters for office or administra-such activity is performed as an inti
tion purposes on the premises, but use must part of nursery business even thouglt
be restricted solely to nursery business con-would not be a permitted use as an i
ducted on the premises, and that nursery pendent business or undertaking. ~
stock was not within purview of zoning See publication Words and Phrasu·
ordinance authorizing "roadside stands, of-for other judicial construction• and1
fering for sale only farm products which definitions.
are produced on the premises" so that road-
side stand for sale of nursery stock was 5· Zoning ¢='233
prohibited. The determination of uses permitt
Affirmed in part and reversed in part
a.nd remanded.
under zoning ordinance must be made
basis of wording of particular ordina
and context in which it occurs.
SUBURBIA GARI
6. zoning 41=>279
A zoning ordinanc
1.11 !'inc.:ss permitted mai
lur office or administra
1.n:1nisl'S, but use must
tu unrsl·ry business cor
;. zonlna 41=>2'9
Under zoning 01
·1 111rsery business, owne·
\'isc and give suggestio
ccrning nursery stock s
1ng, where it should be
property, make sketche
1o planting solely in c
of nursery stock from t
8. Zoning P279
Nursery stock was
uf zoning ordinance a•
!'tands, offering for sale
\Vhich are produced o
that roadside stand for·
was prohibited.
9. Zoning cS=>302
Under zoning 01
nursery business and
ancl uses incident theret
prohibited from selling
.Hge materials, edgings.
sand, gravel, crushed
~imilar nature.
10. Zoning ~279
Under zoning or
nursery business, owne1
precluded from selling ·
nection with sale of p1a
insecticides, chemicals,
mulches, and fertilizer
to be used in preservin.
plants sold.
· 11. Zoning '8=>302
Fact that certain o
nurseries elsewhere did
cessory or incidental u
ordinance permitting nt
• ORTER, 2d SERIES
" onlng *=>279
A ''nursery" within zoning
uiti.ing prcrnises to be Us<'d for 11 (0
-!rics, farn1s and truck gardenin
rea where trees, shrubs, or plan~
-:n for transplanting, for use as s
budding and grafting, or for sale . .'
See publication Word111· and Phra1·.
or other judicial con11truetion• a
-:--~nition1.
nln11 ¢=283
"Business" within zoning
ibiting business in certain territo·
!!mcrciat or mercantile activity cu"
engaged in as a means of livel_
typically involving some indCpena
1dgment and power of decision.
See publication Words and Phr
;,r other judicial construction•
efi.nltlona.
nlng ¢::>231, 233
in determining meaning of
~atutc pertaining to zoning, as.
her subjects, courts generally s ,
is.in intention of lawmakers by···
~ used their ordinary meaDi~
:!ering entire act and its purpo.""
~king to avoid unjust, absurd/
·le, confiscatory or oppressive ·
nlng <!1=>279
\.n activity that is a reasonably.:
incident to nursery business ,,.
emed to be "the conduct of a buS
:,.lation of zoning ordinance ex~
prohibition the nursery busine~.
activity is performed as an i .
of nursery business even tho/;
~ not be a permitted use as a
;-it business or undertaking.
:'..1-~~ publication Words and Phr ·-
!' other judicial conatructlon1
~ .. !tlon1.
Ing <!=>233
·he determination of uses pc
zoning ordinance must be m
of wording of particular ord
:>ntcxt in which it occurs.
• • SUBURBIA GARDENS NURSERY, INC. v. COUNTY OF ST. LOUIS Mo. 267
Cite •• 371 s. 'v .2d 2GG
6. zoning ~279
A zoning ordi11ance pern1itting nursery
business permitted maintenance of quarters
fur office or administration purposes on the
prciniscs, but use must '.le restricted solely
tv 11 nrscr)' business conducted on the prem-
1. zoning 4=>279
accessory buildings and uses customarily
incident thereto.
See publication \Vords and Phrase•
for other judicial constructioue and
definition1,
Daniel P. Reardon, St. Louis, for appel-
lant Mildred Ann Krekeler.
Under zoning ordinance permitting Norman C. Parker, St. Louis County
· 1111rsery business, owner of nursery may ad-Counselor, Arthur M. Wolff, Asst. County
,·isc and give suggestions to customers con-Counselor, for respondent, St. Louis Coun-
ccrning nursery stock suitable for landsca~-ty.
ing, where it should be placed on customer s "
rt make sketches thereof and attend ;··· Cupples, Cooper & Haller, by Irving L. prope y, 11 S b b'
to planting solely in connection with sale,,-Cooper, Clayton, for appe ant u ur ia
of nursery stock from tract involved. Gardens Nursery, Inc. . '
s. Zoning cs::=279
r,~., ...
STORCKMAN, Judge.
Nursery stock was not within purview This proceeding is a consoli<lation of a
of zoning ordinance authorizing "roadside declaratory judgment action and a suit in
stands, offering for sale only farm products equity for injunctive and other relief. It
which are produced on the premises" so , involves the determination of the activities
that roadside stand for sale of nursery stock J in which a nursery may engage in a district
was prohibited. in St. Louis County zoned for that purpose
9. Zoning ¢=1302 among others. Suburbia Gardens Nursery,
; Inc., instituted the declaratory judgment~
Under zoning ordinance permitting J action against the County of St. Louis and
nursery business and accessory buildings ~. certain county officials ·for a determination I
and uses incident thereto nursery owner was '~. of the rights and duties of the parties under
prohibited from selling on premises drain-~: the St. Louis County Zoning Ordinance.,
age materials, edgings, bricks, railroad ties, '.:Ji Thereafter, Mildred Ann Krekeler, an ad-,
sand, gravel, crushed rock and items of ~::r joining landowner, brought the equity sui~
~imilar nature. •, against Suburbia Gardens Nursery, Inc.;
the specific relief requested was an injunc-
10. Zoning ~279 /.< tion against the erection of buildings on
Under zoning ordinance permitting ·~~ Suburbia's land for which a building permit
nursery business, owner of nursery was not l had been issued by St. Louis County. Mrs.
precluded from seJling to customers in con-t Krekeler was aJlowed to intervene in the
nection with sale of plants such fungicides, declaratory judgment action and eventually
insecticides, chemicals, peat moss, humus, the two suits were combined. The con-
mulches and fertilizers as were intended solidated action was tried before the court
to be us~d in preserving life and health of without a jury. By its judgment the trial
plants sold. court declared the terms and CQnditions
II. Zoning e:;;.302
Fact that certain objects were sold in
nurseries elsewhere did not make them "ac-
tessory or incidental uses" within zoning
ordinance permitting nursery business and
under which Suburbia could operate a
nursery ·on its land and found that certain
other uses were prohibited. Suburbia and ,
Mrs. Krekeler both appealed. ·~ Suburbia and Mrs. Krekeler own ad-
joining tracts of land on the south side of .
268 Mo: .377 SOU. WESTERN REPORTER, 2d SERIES • U.S. Highway 40 bet.;;~en Schoettler Road'·.
and Woods Mill Road in St. Louis County.
Mrs. Kreke1er purchased her 72-acre tract
in 1948 and moved onto it with her husband,
Clemens G. Krekeler, in 1950. Mr. and
volving the conduct of a business, including
quarters for servants employed on the prem-
ises, a private garage, and a private stable
except that any detached accessory buildin~
shall be located not less than sixty feet frODJ
any front lot Jine." ·. r Mrs. Krckeler's son and his family live in
another house on the land. The Krekeler
home is about 1200 feet off the highway and
is well landscaped. There arc also two takes
, on the premises. Suburbia proposes to es-
' ~ablish and operate a nursery on its adjoin-
1ng tract of 10.74 acres. It has been issued
building permits for certain structures to
be used in connection with the nursery.
The district zoning regulations for the
Suburbia and Krckeler tracts are the same.
l' The applicable zoning ordinance, § 1003.-
.120 of the St. Louis County Revised Ordi-
tlances 1958, insofar as here pertinent pro·
~des:
"l. The regulations contained in this
Section are the District regulations in the
1B' Single Family District. These regula-
tions arc supplemented-· and qualified by
additional general regulations contained
elsewhere in this Chapter and are made
part of this Section by reference.
112. Use Regulations: Except as other-
wise provided, business and industry are
specifically prohibited, and a building or
premises shall be used only for the following
purposes:
"(I) Single Family Dwellings.
11 (6) Forests, nurseries, farms and truck
gardening: provided, however, that no pout.
try or livestock shall be housed or confined
within one hundred feet of any single fam-
ily dwelling that is located upon an adjoin-
ing lot containing less than three acres.
"{8) Roadside stands, offering for sale
only farm products which are produced upon
the premises, including a sign, advertising
such products, not exceeding twelve square
feet in area, and which stands and signs
~hall be removed during any season for the
period when they are not in use.
"(11) Accessory buildings and uses cus-
tomarily incident to the above uses, not in-
Suburbia was incorporated in 1959 a:ruf
its principal stockholders were Wiltiam
Cohen and Joel Kalcmis. On April 25, 196f
the company purchased the 10.74-acre trac;
in q~est.ion but at the time of trial was op-;-
erat1ng its nursery business at Lindberg an1f'
Olive Street Road, in Creve Coeur, s·
Louis County. The tract is somewhat a
irregular square with a frontage on th
highway of 856.43 feet. The area in whi
the Suburbia and Krekeler tracts ue located
consists largely of homes on 10 to 20-acre
tracts. The surround:ing area is-predom--'
inately farm land. Except for two noncon·'
forming uses, there are no commercial en~
terpriscs on Highway 40 east of the tract
for a distance of 12 mitts. There is a nurs
cry located on Schoettler Road approxi "·
mately l~ miles west and about 350 fee·
south of Highway 40.
The principal witnesses for Suburbia
were Mr. Cohen and t~o owners and oper
ators of nurseries in St. Louis County wh'
had been in business since prior to 1
when the St:Louis ColUlty Ordinance
originally enacted. Suburbia's evideric
tended to prove that practically all tre
and plants sold by nurseries in St. Lou1
County were grown at other places and are
brought to the nurseries for further growtti
and preservation before they are sold. Thia
is due to the fact that plants can be gro ·
from seed more advantageously in othe
places. Apparently there are no wholesaf
nurseries in St. Louis County. In general
Suburbia's business activities include t&
growing and transplanting of trees, plant'
and shrubs, cultivating and preserving them
advising customers, and drawing sketches
showing where the nursery prOducts should
be planted for the purpose of landscaping
the customer's property most advan~
geously. In operating a nursery, fertilizers
insecticides, mulches, agricultural ma~J~
SUBURBIA Gl\.RDEJ
cry and irrigation equipme
nrhia has :tbout 13 employ
used interchangeably in
SuburLia sells nurscrJ
,"lrc gro\vn, transplanted,
tivatcd or grafted on its ti
plnnts the products on the
crty. Most nursery trees
livered to Suburbia in a
arc usually planted in the
other materials for furthc:
crvation. Sometimes pl
and sold in pots. Mr. C
the placing of plants in bi
display purposes is a part
It is not the intention o:
~arden hose, sprinklers,
spreaders, carts, spraye1
trellises, garden ornam<
sin1ilar items. 1 t plans tc
bricks, sand, gravel, crusl
ilar material in connectiot
activities to be conducte<
tion but not to sCll them
Suburbia's application 1
ty for a building permit
hy plans which called fof
;1dministrative or Office
house for shade-loving pl
storage building, atld' t
sidewalks and paving {(,
The architect's plans. ca
outlets for flood lights j,
tified that the company d
intend to use floodlight:
and that the plans were.
subject to change, Subt
for operation of the buii
days during daylight hot
pects to have 6 acres to
crops after the installatic
buildings and paved ar~
uncertain whether a sii
to identify the-business.
Robert L. Eggers of th
sery and Joe .w. Myers .
and Landscape Company
ty described the nature
operation of a nursery bt
:•ETER, 2d SERIES
ing the c~nducf of a business, includi
'ers for scr\•ants employed on the pr
a private garage, and a private stab
Dt that any detached accessory buildi ..
be located not Jess than sixty feet fr
~1'ont Jot line."
burbia was incorporated in
·::incipal stockholders were Wifii~
,-, and Joel Kalcmis. On April 25, 196
)mpany purchased the 10.74-acrc tra
estion but at the time of trial was o
·:; its nursery business at Lindberg a
Street Roadt jn Creve Coeur,
County. The tract is somewhat
11ar square with a frontage on t
•Y of 856.43 feet. The area in whi .
1burbia and Krekeler tracts ue locat,
:s largely of homes on 10 t.o 20-ac
The surrounding area is-predo ;·
0 farm land. Except for two nonco
!g uses, there arc no commercial
-~• on Highway 40 cast of the t
:istancc of 12 mifts. There is a nu_'.
:atcd on Schoetller Road appro
llh miles west and about 350 fc
·f Highway 40.
principal witnesses for Subur~
-~r. Cohen and two owners aDd. o :
·! nurseries in St. Louis County ~
.;::n in business since prior to -t
he St:Louis Cotmty Ordinance
1ly enacted. Suburbia'• eviden
to prove that practically all
~-nts sold by nurseries in St. ,
were grown at other places and ,
t to the nurseries for further grcf~ ..
=ervation before they arc sold.
:o the fact that plants can be . ·
~~d more advantageously in odi
Apparently there arc no whole ..
es in St. Louis County. In gene
fat's business activities include -:
~ and transplanting of trees, pt ~bs, cultivating and preserving th,.._
-:: customers, and drawing sketch
_ where the nursery products sho
t<d for the purpose of landscaP.0
~tomcr's property most adva _ ·
In operating a nursery, fcrtili
· 1es, mulches, agricultural
. ' •.. lto. 269 SUBURBIA GARDENS NURSERY, INO. v. COUNTY OF ST. LOUIS
Cite as 371 S. \V.2d 268
. and irrigation equipment are used. Sub.-cr~ia has about 13 employees Who are ~ften ur ,_1 . • • "t" used interchangeau y 1n various acttvt tes.
Suburbia sells nursery products which
are grown, transplanted, propagated, cul-
. "atcd or grafted on its land, and generally
II\ ' plants the products on the customers prop-
ty Most nursery trees and plants arc de-er · li\·cred to Suburbia in a ball of earth and
arc usua1ly planted in the soil, sawdust, or
other materials for further growth or pres-
er,·ation. Sometimes plants are bought
and sold in pots. Mr. Cohen testified -that
the placing of plants in bins of sawdust for
display purposes is a part of transplanting.
It is not the intention of Suburbia to sell
g-arden hose, sprinklers, nozzles, mowers,
spreaders, carts, sprayers, dusters, tools,
irellises, garden ornaments, pottery and
siniilar itemS. It plans to use railroad ties,
bricks, sand, gravel, crushed rock, and sim-
ilar material in connection with the business
activities to be conducted at the new loca-
tion but not to sell them to customers.
Suburbia's application t.o St. Louis. Coun-
ty for a building permit. was accompanied
by plans which called .for the erectio.n of an
administrative or office building, a lath
house for shade-loving plants, a gal-age and
storage building, arid the installation of
sidewalks and paving for a parking area.
The architect's plans called for electrical
outlets for flood lights but Mr. Cohen tes-
tified that the comp3.ny did not at this time
intend to Use floodlights on lhe property
and that the plans were not final and were
subject to change. Suburbia's plans called
for operation of the business onJy on week
days during daylight hours. Suburbia ex-
pects to have 6 acres to devote to growing
crops after the installation of the proposed
buildings and paved areas. Mr. ~hen was
uncertain whether a sign would be used
to identify th~ business ..
Robert L. Eggers of .the Arrowhead Nur-
sery and Joe -W. Myers of Westover Farm
and Landscape Company in St. Louis Coun-
(y described the nature and ex'tent of the
operation of a nursery buSiness frOm a time
prior to 1946 to the ~resent. Mr. Eggers
described his business as thC growing and
selling of nursery stock, moving stock from
the nursery to his customer's premiS~s and
transplanting it there, building watts and
patios, drawing plans, spraying, m"aking
lawns and sodding; he stated that land-
scaping, incidental to the nursery business,
was very important and without one a per-
son could not do the other. Mr. Myers tes-
tified that his company also operates a
greenhouse and sells pottery and garden
equipment. Mr. Cohen testified that it was
the intention of Suburbia Gardens to . do
and Perform those things customarily done
in the nursery and landscaping business.
St. Louis County in general supported
the Kreketer position but offered no evi-
denCe independently. Mrs. Krekcler in-
troduced photographic and oihcr documen-
tary exhibits ana testified that she was the
owner of the property on which she resided.
Mf.. Kreketer in substance testified that he
objected to the construction of the prpposed
buildings ~n Suburbia's tra~t and especi~ly
a retail sales office but that he had no objec-
tion to th.c use of the land. for growing nur-
sery stock if it was mov~.d: to at\othcr lo-
catiOn for resale. To the 'extent neccssa"ry,
further eVidetl~e will bC rcfCrrcd to in con·
ncction with the discussion of the legal
questions involved.
The relevant portions of the ~rial court's
judgment and decree arc. as follows:
"In accordanc~:.with the plead~ngs ·herein
and the evidence adduced relevant thereto,
on the pc ti ti On . of plaintiff, Subu.rbia Gar·
dens Nursery, InC., it i~ by the court fo.u_nd
and declared that under St. . Louis Cciunty
Revised Ordinances, 1958, Section 1003.120,
said plaintiff may oper~te a nursery o~ the
Jands described in the petition, under the
following conditiOns and for the f0Jlowi0g
purposes.
"I. For the propagation, cultivation,
. and growth o~ the premises of trees,
· shrubs, plantS, vin'es and th.c like~ f(O~ 1 ~
s~ed' or stock. · · · · ·
"' =:
• • 270 Ho. 377 SOUTH WESTERN REPORTER, 2d SERIES
112. For the sale of trees, shrubs, plants,
vines and the like, propagated, grown
and cultivated on the premises from
seed or stock, including the sale of such
plants purchased elsewhere and trans·
planted into the soil of said property.
0 3, For the construction,operation and
use of a roadside stand for the sale of
nursery products growr. on the premises
with the use of a sign advertising such
sale only as set forth in Section 1003 ...
120, 2(a), St. Louis County Ordinances,
1958.
"4. For the employment -of such per-
sons and the use of vehicles and me-
chanical equipment, including irrigation
equipment, on said premises Only as is
necessary and essential_ to the cultiva-
tion, propagation and growth on the
premises of shrubs, plants, vines and
the like, under 1., 2., and 3., above.
"S. For the storing and use .on the
premises.of only such fertilizers, fung-·
ic:;ides, .·sterilized soil, sand, mulch,
dirt, wood, rocks and other related
· materials, &nd. objects: essential and
ncCessa.ry tO , the propagation, growth
and ct.tltiv3.tiori on the premises of
shrubs, _plants, frees, vin:es, and · the
li~e, from Seed or stock.
"6. Accessory buildir..gs and uses cus-
tomarily incident to the above uses,
including bins for the heeling-in of
nursery products and to provide bins
for dry planting _ma;terials and edgings,
not involving the conduct of a business,
including quarters for servants employ-
ed on the premises, a private garage,
and a private stable, except that any
detached accessory building shall be
located not less that sixty feet from
any front lot line.
0 7. For paving a parking area imme-
diately adjacent to said roadside stand
for use in connection with sales there-
from.
"It is further found and declared that
under said Ordinance Section 1003.120,
plaintiff, Suburbia Gardens Nursery, Inc1 may not make the following uses of th
property described in the petition: ~'.
11 (a) Operate on said property a land·
scaping business and trade, including
the keeping for sale on said property·_~
drainage materials, edgings, bricks,.:
railroad ties, sand, gravel, crushed rock,·
and items of similar nature. '
''(b) Construct on said property an
office building for the administrative.
handling of its nursery business.
"Under the petition of plaintiff, Mildr
'
Ann Krekeler, in Case No. 245085, plainti,
Suburbia Gardens Nursery, Inc., is enjoi
ed from doing the acts numbered (a) ari
(b) above only."
In general the contentions of Suburbl
on appeal are that the decree is not su ·.
cient1y specific, that it should be permitt'
to construct an administrative building
connection with its nursery operation, ·
perform landscaping activities and to S
certain commodities, and that the right'
an. injunction was not established. M
Krekeler contends that the court erred·
permitting 'Suburbia to operate a roa~~
stand for the sale of nursery stock an~
use a sign in connection with it, and in~
ing to prohibit Suburbia from condu~
a retail business on Its pr~mises.
[1] A nursery as that term is used in __
zoning ordinance, Chapter 1003, and_ p·
ticu1arly § 1003.120, is 11an area where tre'
shrubs, or plants are grown for transpt4
ing, for use as stocks for budding and gr:'~
ing, or sale." Webster's 3d Internati0°
Dictionary. Other defir:iitions arc to
same effect. See Town of Needham v.
slow Nurseries, Inc., 330 Mass. 95, 111
2d 453, 456 [3], 40 A.L.R.2d 1450. S
section 2(6) of§ 1003.120 permits the pr' ,
ises to be used for "Forests, nursei'1
farms and truck gardening''. The de6
tions and the context contemplate the 1~
of the produce of the nursery. .,
[2] In the sense here involved, a busiq
is a "commercial or mercantile activity c
SUBURB
tomarily eng2
hood and typi
dcnce of jud@
Webster's 3c
See also Sem
65, 109 s.w. (
230 Mo.App.
Freese v. St.
Mo.App., 252
operation of
is a business
dinance perm
districts. See
St. Louis Cou
(3] In det•
ordinance or
as well as ot
eratly seek to
lawmakers by
ordinary mear
act and its pur
unjust, absur•
or oppressive
western Ry. (
246, 252 [I, 2:
St. Louis, Mo
Killian ,., Bri·
App., 154 S.V
Roth, 356 Mo.
The respon1
County seem ·
no business ac
under § I 003.1
section 2, s·
"Except as otl
industry arc SJ
Italics added.
vided is the n
rnitted busine1
of the zonilig
(4] An ac
necessary inci
will not be de1
business" in ,
of the zoning
activity is pe:
essential part
though it WOU
an independe1
~ER; 2d SERIES
, Suburb~a Gardens Nursery, I
t make the following uses of;·
.-described in the petition: £;
::>pcrate on said property a l~n·
,i; business and trade, includi
~cping for sale on said prope
~ e-e materials, edgings, bricl(
=..d ties, sand, gravel, crushed rcie:
~~ms of similar nature. .,
Construct on said property-,
building for the administrat'~~
-?lg of its nursery business. 1'.
er the petition of plaintiff, Mil~
eketcr, in Case No. 245085, plai
~Gardens Nursery, Inc., is elif
doing the acts numbered (a):
·Ve only."
-f!eral the contentions of SubU
:al arc that the decree is nof
specific, that it should be per '.
'..ru.ct an administrative buildi
;on with its nursery operati_"
°' landscaping activities and t'
comniodities, and that the rig_
•lction was not established ... "
r contends that the court er~ . .
ng Suburbia to operate a r
Jr the sate of nursery stock~·
:;u iQ. connection with it, •D:~~
prohibit Suburbia from co~~·
·business on its pr~mises.
nursery as that term is used.
ordinance, Otapter 1003, ar{ ·
-§ 1003.120, is ''an area whet'
or plants are grown for tran
use as stocks for budding an~i)
sale." Webster's 3d Inte
-r:y. Other dehQ.itions are··
ect. See Town of Needham·
"•cries, Inc., 330 Mass. 95, J~
456 (3), 40 A.L.R2d 14s0,·1
<(6) of§ 1003.120 permits th~
be used for ''Forests, nu
nd truck gardening''. Th~
1 the context contemplate
•roduce of the nursery.
' ~ the sense here involved, a .·
!•mercial or mercantile acti~i
t.BURBIA GARDENS NURSERY, INO. v. 00,TY OF ST. LOUIS
Cite as 371 8. \V .2d 200
Mo. 271
ton1arily engaged in as a means of liveli-
hood and typically involving some indepen-
dence of judgment and power of decision."
Webster's 3d International Dictionary.
See also Semple v. Schwarz, 130 Mo.App.
65, J09 S.W. 633, 63~36; Pitts v. Maupin,
230 Mo.App. 221, 88 S.W.2d 384, 386 (2) ;
Freese v. St. Paul Mercury Indemnity Co.,
Mo.App., 252 S.W.2d 653, 655 (4). The
operation of a nursery for financial gain
is a business enterprise. The zoning or-
dinance permits this use in practically all
districts. See§§ 1003.110 through 1003.210,
St. Louis County Ordinances 1958.
(3) In determining the meaning of an
ordinance or statute pertaining to zoning,
as well as other subjects, the courts gen-
t~rally seek to ascertain the intention of the
la\'1makers by giving the words used their
ordinary meaning, by considering the entire
act and its purposes, and by seeking to avoid
unjust, absurd, unreasonable, confiscatory
or oppressive results. St. Louis South-
western Ry. Co. v. Loeb, Mo., 318 S.W.2d
246, 252 [I, 2); Laclede Gas Co. v. City of
St. Louis, Mo., 253 S.W.2d 832, 835 (2, 3);
Killian \', Brith Sholom Congregation, Mo.
App., 154 S.W.2d 387, 395 (12); Evans v.
Roth, 356 Mo. 237, 201 S.W 2d 357, 364 [SJ.
The respondents Krekeler and St. Louis
County seem to proceed on the theory that
no business activity of any kind is permitted
under § 1003.120. The use regulations, sub-
section 2, starts with this statement:
"Except as otheni!i.se provided, business and
industry are specifically prohibited, • • • ."
Italics added. Among the exceptions pro-
vided is the nursery business. It is a per-
mitted business use Within the limitations
of the zoning ordinance.
(4) An activity that is a reasonably
necessary incident to the nursery business
will not be deemed to be "the conduct of a
lousiness" in violation of § 1003.120-2(11)
of the zoning ordinance when such use or
activity is performed-as an integral and
rssential part of the nursery business even
though it would not be a permitted use as
an independent business or undertaking.
State ex rel. Szodomka v. Gruber, 201 La.
1068, 10 So.2d 899, 902-903 (7) ; Call Bond
& Mortgage Co. v. Sioux City, 219 Ia. 572,
259 N.W. 33, 35 [I). For example, pro-
viding a parking area for automobiles of
customers of the nursery would be a per-
mitted incidental use whereas the operation
of a parking garage or facility on the
premises as an i.ndependcnt business ven-
t1.tre would not be. The operation of a
nursery is a use already granted and per-
mitted by subsection 2(6). Subsection
2(11) refers to additional uses accessory
and customarily incident to the conduct of
a nursery but proscribes grafting onto the
nursery business a separate or independent
business use or activity.
[S] The principal issues in this case
have been considered and decided in Town
of Needham v. Winslow Nurseries, Inc.,
330 Mass. 95, 111 N.E.2d 453, 40 A.L.R.2d
1450. The bill in equity was to restrain
the use of defenda'nt's premises in Need-
ham for purposes alleged to be in violation
of a zoning bylaw (ordinance) of the
town. The ordinance was quite similar to
the one here involved. Among other simi-
lar uses, it permitted one-family detached
houses and farms, stock farms, green-
houses, nurseries and truck gardens. The
fact that Winslow also operated a greeO-
house_ does not distinguish the case because
the questions presented related chiefly to
the nursery. ·The greenhouse and nursery
business was ·tocated in ·a single-farnily-
residente district on a tract of land less
than half as large as the one here in-
volved. The buildings on the land con-
sisted of a sales and growing greenhouse,
to which a greenhouse workshop, a storage
building, a garden shop and an office were
attached. Nearby there was a second stor-
age shed and another greenhouse with a
wing and heating plant. A new sales
greenhouse, 60 by 40 feet, was in process
of construction. The floor area of a11 these
buildings was slightly in excess of 12,500
square feet. The land not occupied by
buildings was used for growing nursery
stock. · Winslow also proposed to construct
272 Mo. 377 s1H WESTERN REPORTER, 2d SERIES •
a parking lot 260 feet long by 80 feet wide
fo,r t~e accommodation of 60 au.tomobiles.
The v_olume of business_ dollarwise was
more than twi~e as much· as in the instant
case. The Supreme. Judicial Court of
Massachµsetts considered the various ac·
tivities and determined what uses could and
what u~s .could not be made of the premi·
ses~ The _opinion is well reasOned _and ~t~
ri;;sults are strongly.persuasive of the prop~
er interpretation and .. app1icatio~ of the
in,~.tant . 9rdinan~~· Tqe jnstant ~ase: has
been we11 briefed .and-.We .have considered
all the cases cited by the parties. They
have been helpful but none of them are
co~trolling: The determi~ation of th~· uses
permitted in this case must be made on ~he
basis of the wording of this particular or-
dinance and the context in which it occurs.
(6J. The conduct -0f any business in-
cluding the operation of a nursery requires
the keeping of books and records-some."'.
times unQer compulsi~n of federal, state or
local laws. O_ther cledcal work is also re-:
q4ired. A place to consult with customers_
and other busin~ss visitors rather than in'
the open where the nursery stock is grown
is e~sential to the conduct of the nursery
business. The ordinan.Ce contemplates that
qu_arters for th~ perfOrw:ance -of th~se_ arid,
sirriitar f~ncti9ns ni~y .be prOvide'd. in . a'n
ac.cessory . building On .. the· ·pre~ises'. It
does not matter whether it is designated an -
ad,ministrative building or rooms in a
buiJding, an office . or a cou_ntinghouse.
Th~ zoning orditiance permits the main·
tenanc~ of ~uch quartCrs for office or· ad·
mini_stratiOn purpoSes QO the premises, bUt
the. ~~e ~ust '.,~e restricted solely to the
nu.rsery bv.sin,ess .conducted on the pr~m
is~s.
Needham, 111 N.E.2d 457-458: "Doubt!~
the; defend~~t may engage in landscap"_
as a part· of. the planning and preparati
of the land for the planting of trees .
shrubs '":'hich it intends to sell from ·
nursery. It may enter into contracts ;f
such work. We think, howev.er, its pre'
is_es c~nnot be used as headquarters for,
contraCting business which does not. '·
cern the" transplanting of the defen.dan
own nursery stock 9r the stock which h
physic;dly. become a part of the nurse'
Such use exc_eeds what is reasonably ace
sory to its principal business, as docs_
maintenance on the premises of mo
trucks than are necessary for the deliv ·
of its· own products."
(8) Paragraphs 3 and
relating to the constructiOn and operati ·
of. a roadside staild should be eliminat"
entirely. Subsection 2(8) of § 1003.1
authorizes 41 Roadside stands, offering t•
sale only farm products which are pr
duced on the premises.". We have co
eluded that nursery stock iS not within(""
purview of this provisio·n, and .that a ro
side stand for the sale of-nursery stock
not otherwise authorized. Farin prod~-,
mature' ·seasonaUy, are severed froin I
pl,ant or soil, and are readily transpo_:·
to and displayed in stands where ti\
may be sold. Nursery stocks are not in ,W:
saµle category and it wou_ld be out of k~ ·
ing with the object and purposes of~ _t
ordin3:nc.~ to permit their sale from
side. s\ands.
:_")!
[9, 10) , ·.Suburbia's. further contentj
that it should be .permittCd to sell on,·tli
premises drainage materials,· edgin
bricks, railroad ties, sand, gravel, crush_·
rock and items of a simil_ar nature is
(7) W~ have also concluded that Sub-. nied. Such commodities are not the .pr
urbia nlay ad"..ise ~nd give suggestions to uce of '-:nursery and are not aCccssory;
customers concer.ning nq_rsery s_tock su.i~able incidental to· the ·nursery· bU.s'inesS as a:··
fot landscaping'., where it ·should be .placed thotized by_ the zoning ordinance •. As fti
on the C~stomeris property, :make sketches. · ther state<$ ·in·the.-Necdham c·ase; 111 N;
thereof and atte°'d,.to the planting solely in 2d 453,. 457' ·[6}: "Although denied th'
co~,oe~~iqn with the $ale of nurs~ry. st_ock,. .' right to maintain-a store, we think that'th
£ro.m _the tr~ct: in .Que~ti_c;>n. As .staicd ·in defendant -is. not ·precluded'.~from sellirig•·t""
ruston1crs in connection_
!ants such fungicides, in: fl' ' .. c:i.ls, pccit m?ss, humus., m
Ji:i:crs as are i_ntended to
!'>l'rving the life and hea:
sold."
[Ill At one time. Mr
ihat Suburbi~. d~d not .int
retail 'stOre for ~he sale t
urg.cd upo.n.~s .. Th~ fact
arc sold .in: nurseries els
uiake them ae;cessory .01
111 icler the· ordinance. W
in this regard also disp.
K rC'kclcr·~ c~.nten~ion tha
111 prohibi~ ~u~~rbia fr1
retail busifi.ess .O:n the
~ales must be li_mited to
in the manner stated.
The appellant Suburl:>:
that the deCree is ·not sufl
!'etting out a~. sp·ecifyi_'11
parties under the ordin'a1
111attcrs referred to arc r.
ciable. So far as appear
presented, all.-other issu
posed of. There is no
regarding a~ en.trance si1
er matters w'ill have to bC
parties consistent with th
other ordinances that 11
No question was preSeir
as to the design or cc
nursery. bu,ildings and otl
only objection was respe•
and those· issues have bi
The costs· 09 appeal
half against Suburbia at
:1gainst St. Louis Count
dcr.
In the· resp~~t.S: indic;
and decree; ·•$._ reversed
!'pects ·it is affirmed, an
tnanded for· further-pro·
\\"ith this opinion.
:·;,•
All concur.
'1;· S.W.2d-l8
'. Bd SERIE!!,
111 N.~ 457-458: "Do11~.
'-~l may engage in land~1
j~. the planning and prcpari:
1 for the plantipg of trcel:
ich it intends to sell fro
•t may enter into contract
We think, howev.er, its.
be used as headquarters
business which does not
•ansp1anting of the defend
y stock or the stock whic
become a part of the nu
'"'~:ceds what is reasonably .a"
principal business, as def
~ on the premises of ~ ·
arc necessary for the del{
products.''
•graphs 3 and 7 of the d
the. construction and opCr
ide stand should be elimi ·
~ubsection 2(8) of §· I ·
"Roadside stands, offcrin
·arm products which ar~_-·
he premises." We ha~
iiurscry stock iS not with'.
this provisio'n, and .th8.t i::
~or the sale of nursery .a:
-~! authoiized. Fariti
~~ally, are sevefed . f .
U, and are. readily tr.,Pj
,.taycd in stands whc(e
Nursery stocks are ~~{
•fY and it would be out,O:f
•C object and purposes.
permit their sale frorµ_
;uburbia's . further
;,<l be .peqnittCd to
~rainage materials,·
oad ties, sand, gravel, C
:m; of a similar :natur ·
commodities arc Mt th~·
~sery and are hot act:e ·
;.· .. the ·nursery· bus·inesi
the zoning ordinance.·i•i\$
':dht:Necdham case; 111:
;, ·[6},: "Although den.i ··
ntain-·a store, we think·t~ . .
. ·not ·precluded ·!from sci · ;
• RAGAN v. LOONE-Mo. 273
cue a• 377 s. '" .2d 273
,11 sto1ncrs in connection with its sale of
plants su~~ fungicides, insecticides, chemi-
cnls, pccit moss, humus, mulches, and ferti-
lizers as arC i.ntended to be used in pre-
>rrving the life and health of the plants
!'tJld."
[11] At one time. Mr. Cohen testified
that Subu.rbia d~d not intend to conduct a
rdail ·store for ~he sale of the items no_w
urged up0;n,l}s·. Th~ fact that such objects
;ire sold in. nurseries. else\vhere does not
111 akc them ac.ccssory .or incidental uses
11 111lcr the. ordinance. What we have said
in this regard also disposes of appellant·
~ r('kcler'!! c~_ntent_ion that the decree fails
1., prohibi~ Su~t._trbia from conducting a
rdail busiOc!is .on t_he p·remise·s. Retail
~all's must be ti_mited to n.urscry produce
;11 !he nlanncr stated.
The appellant Suburl;>ia also. cOmplains.
1hat the decree is ·not sufficiently definite in
:-.citing out afi:d. specifyi_itg the rights of the
[':1rtics under the ordinance. Some of the
rnattcrs referred to arc not presently justi-
rialilc. So far as appears from the record
presented, all other issues have been dis-
posed of. There is no .issue in the case
rc·garding a~ en.trance sign. This and .oth-
rr matters w'itt have to. be Work¢ Out by the
parties consistent with the zoning laws and
other ordinances that may be applicable.
X o question was presented on this appekt
a~ to the design or construction of ·the
1111rscry. buildings and other .facHitics. The
only objection was respecting their pµrpose
;111cl those issues have been set.tied._
The costs oz:i appeal ai;e ass~ssed onc-
h:tl f against Suburbia and one-fourth each
;,i.:-ainst St. Louis County and Mrs. Krek-
' ltr.
In the respc.cts indicated ~he. judgment
:n1d decree, ·iS. reversed; in all other re-,·
'Peets it is affirtned, and the cause is re-
manded for· further proceedings consistent.
with this Opinion. ·
Alt cone~~.-
''; s.w.2c1-1e
Perry C. RAGAN and Mary Ola Ragan,
Plaln tlffl·Appellanta,
••
Benjamin LOONEY et al., Defendant&·
Reapondenta.
No. 49877.
aup_rezµe Court of Missouri,
'~ Division No. 2.
April 13, 1964.
Action to quiet and determine title to
land. The Circuit ~ourt, J:>olk County,
James P. Hawkins, J., entered judgn1ent
adverse t_o the plaintiffs, and they appealed.
The Supreme Court, Barrett, C., held that
1918 execution sale of numerous remainder
interests in 200 acres of land for $440 was
not void because of inadequacy of price re-
ceived.
Reversed and remanded.
I. I nfant1 G=83
~ven though guardian ad liteµi is en-
ti~led to no other fee than that which is
taxed ·a~ part of costS .in procCeding, fees
or .. c9sts. ch(l.rgeable_ as remuneration co
nomine ar~,~ose B.uOwed st~ictty for serv-..
ices in his capacity as guardian.. Section
507.190 RSMo 1959, V.A.M.S. . .
2. Infants G=84
G.~urt-app~inted guardian ad lite~ may
emplOy counsel.
3. _I nfanta c8=83, ~4
If guardian ad litem is also attorney,
he may also act as counsel for his ward
and if he does and services arc necessary, he:~
is eptitled. to reasonable fee for ser::vlces
in thai capacity or for his. combined .s'erv-
ices. ·
' Cps~s are statutory ~110'.'Nances .to.party.: -
to a~Uon for .. 1).is C?Cpenses. _.
.TED' ,,,
dairying, 'pa.~uf
culture, vltlcul
try husband&; Ja
products by• one .
lture as hete\1!.l · ,.,rr,c 4
.mty Comrs'. ~ ·rB~
i9, 825 P2d 88?; t
that the raisin
" poultry wa$' ...
=an agrlcultural'JI •.
' ! .. -1!)'.iilP,
ailed to S~~venljlf
1 App Div 2d"&9
herein reference wk
' ' ng ordinance, iltlil .
an agrlculturalnll .
·uld be used''forh> .
n a Residential 0'11
••tomary agrfoultu '
tter phrase· •bel~ll'll
·•ordinance as': '<'l'h
.-;;ildings for the'rol
-, of grain, produ·'
i.e., either for ·pr~tl
,;i'.'I
• • ANNO: 'ZONING-FARMING OR AGRICULTURAL USES 707
did not define "agriCulture" or "aiirl-
cultural,""tlie term would have to be
interpreted aild applied In accordance
with ita-usual and generally accepted
meaning, and after . citing dictionary
definitions of ·"&griculture," the court
concluded that the term did not mean
only the tilling of the soil, and that
the raising and housing of turkeys was
well within its reasonable meaning.
+
In referring to the question wheth-
er the authorization ·of agricultural
activities In a residential area would
be detrimental,:the court in Moulton v
Building Inspector of Milton (1942)
812 Mass 195, 48 NE2d 662, said: ''The
exemption from· the operation of the
zoning by-Jaw. of aily 'agricultural use,
selling only produce raised -on the
premises/ 'is complete and un~ondi
tional, except as therein stated. It is
not limited to agricultural uses that
do not injure a residential. neighbor-
hood. We have no right to assume
that agricultural uses. were permitted
in the belief ·or upon any implication
that they· would not be injurious. : It
is obvious ;that.various·lncidents Qf
uses indubitably to.· be classed ras'"ll'"
ricultural· may, be. detrimental-to "'
residential.·neighborhood. .we need
mention onlY:Jthe use of. ordinary ·fel"
tilizers.· .-So ;far '11.8 ·we .know,-the, town
for reason's'IAeemedr•b:r· Jt ,.,ulllclettt
deliberlltely;ibi:tended to· prefer,iagrl"
cultural ·ove~1ite8.idential •i uses ..... , ...... ,:
There Js:noiJnystery' about the•wo~ds_
'agrieulturaliusb;'.~.;. . : .. These woi:'<ls
include ·all. uses 'of land that In .com•·
mon speech•nd acceptation would· be
described 0 as«agricultura1,·· no •matter
how lnjlirlou«·they'may he to a·neigh~
borhood ' of' :Jioines. The test ·'.Jit
whether. the''lt'iie is agric1Httlral .ind
not wh~thet,, ~~' f", cietrlniental.", ,
..-, , . --";c, re t;" l :. .. · . : : · . ·: . .
II. PartlcubttiUBeB of•.Jand·as farming.
Or ',agrfcuJture: :' I
• 'i , ''J°'.! -f: .. · ' -I• · · _• : '/ • ;
§ 3. Nurser(es .. ,and greeithouses. , .
It' has been »held that a nµrseey In
which fipwers'),or other planta ,or
shrubs,,are ;grown ;for,·s11le ,constitutes
a Hf arm" or iS' "farrQing". and may be
operated _in a ·r~,idence .zone ill which
11 •CoJ, a
a farm or farming Is permitted by
zoning regµlations.
The operation of a plant nursery for
the purpose of conducting a wholesale
business in the trade of cacti, succu·
lents, and novelty plants was held In
Hagenburger v Los Angeles (1942) 51
Cal App 2d 161, 124 P2d 845, to be
authorized upon certain lots situated
in a residence zone, under an ordi-
nance providing that "any lot or
premises may be used for farming,"
where the opeciftc ·exceptions to such
use of property did--not include the
raising of plants and fiowers, the
court saying that although· in a re-
stricted .sense "farming" has been
used to apply to the cultivation of
large tracts of land for the produc-
tion of crops for the use of man and
animals, the city council -used the
word In its general sense as including
gardening or horticulture, fruitgrow-
iiig, and the raising of vegetables,
irees; shrubs,. plants, and similar
products.
In Appeal of Klein (1959) 395 Pa
157,-14.9 A2d .114, the appellee. pur-
chased. a .one-acre tract of land in a
township .r~sidential · zon'e with the
intent 9f using the property for raising
cut ~pwers; <i.~11.u.al&, and evergree:nB
for s11le, • ,11nd . appellee obtained
b,u,(l\ling ptiim.Jtji .. for. the construction
of a greenhouse a_nd a workshop, but
Ute., P,er1iilt,8 1 \iier~ ;;~.ubseci\le11t1y re:
folt!ld,,,l\n~,th.e ire'\'ocatlon was upheld
b.l':. the .. board·;ofT adjustment ,on the
ground 'that the· proposed use of the
pr0P~rty"W~8 ~.nOt. a ·-"}aim" under
t]i,e zonirig 'ordinance and that the.
permits ,were . therefore illegally · ls-
s'µed, but ,on. appeal from .a judgment
reverslitg the . board of ·adjustment,
the .. deFree '!if. the lower court was
affirmed, the ·, co.urt saying that a·
careful readlitg' of"the testimony con-
vlnced ·it that"the appellee Intended to
uoe the"laifd tci1 grow'flower8,' shrubs,
and evergreens, tJi.at tii:e worksliop and
greenhouse "Were ·'to ·be operated· In
connection' wlth' this· ·use, arid that all
parties ·agreed"·that ·a· nursery: and
gre'enhoule operation ·was a fafm use,
even on a--one•acre farm. The board
of: adjustment bad based .<ts decision
on testimony of the appeUee .that at·
t'
•.
.. '..·
• • 708 AMERICAN LAW REPORTS, ANNOTATED 97, .....
seasonal periods of ·peak demand for
potted plants he would buy at whole-
sale potted plants for resale, the
board being of the opinion that this
was not a permitted 0 farm" use and
that appellee intended to engage in
uthe commerCial selling of shrubs and
llowere with the cultivation of the
soil and the growing of plants and
shrubs Incidental thereto," but the
court said that the· mere buying of
some plants for resale, especially at
peak periods, would not change the es-
sential character of the "farm" use,
but that the buying for resale could
not be of such amount or proportion
as to make the cultivation and sale of
the products grown on the land a mere
accessory to appellee's commercial ac-
tivity.
It was held in Ma,;ple Township v
Lynam (1948) 151 Pa Super 288, 80
A2d 208, that a nursery· where orna-
mental and other trees and shrubs
were grown was a ufarm" within·
the meaning of _a zoning ordinance
permitting, among other things, the
use of property in an R-8 Resi-
dence District for a "fa.rm, private·
greenhouse, municipal recreational
use, railway or bus pas.Senger station,
municipal or administrative build-·
fng/' and "accessory use on the
same lot with and customarily Incl•
dental. to any"of the· above .Permitted
~~es," With r 0gard io· the. fact' that
the nursery In qµeeti.on occupied only
2.6 aci'es of land' while · a ·general-
purpoee farm ·required a substantial
acreage," the court said that .since It
was the Intention of the township un-
der the ordinance to permit an owner
to use his lot as a farm, the ordinance,
by .necessary lmpllcatiol), permitted
the use of .the land for .such agri-
cultural specialty as. the size of the
lot would permit, adding: ''An· owner,
under the or.dinance., undou.btedly,
could use; hie lot as. a llower garden.
or a truck patch. These uses as weJI.
as raising nursery· stock to·, salable·
size involve the :same;. processes as
producing crops on a farm. . Using the
land Jn . queatlon as a nursery ls·
within the 'permitted uses under the
ordinance."
§ 4. Poultry raising. ;, )o ·
Commercial poultry ralshli(r~
some cases been recognized, a.riff{"
culture .. or as "farming" and,1,4· ·
lngly, has been held permieelb19'
der zoning regulations pennf
agriculture or farming in certain
tricts. !11{J~"'
In Fidler v Zoning Board''off
juetment (1962) 408 Pa 260, 1"82'
692, 97 ALR2d 697, where the a~i>.
lante sought a zoning permlf.fol'i\fli
construction of 15 "pole barns!l.-.~.,
their 42-acre tract of farmland ;·MU
was situated in a townshii>i~
cultural zone, and it appeared;th!lt ·
appellants desired to use the cJail'.i
raise from 40,000 to 50,000 turk"ey.S:
to grow grain which would •lp_ro ·
feed for from 8,000 to 4,000 ot ·
turkeys, the court concluded .!i\t
while the contemplated use of the I
was "commercial," it was als0'1~'a ·
cultural" and was permissibfo tund
the terms of the zoning orainan
which permitted "agriculture ana•
business Incidental to the jirocesil'j ·
and marketing of farm prodbc
except for certain prohibited· us ··~·
land and buildings which lncJ\i
among others, comnierclal slaul!'l1
houses, -markets·~--BtQckyardi)a;~
llzer plante, ''and· all other'pur~q
a· commercial ·nature."·, The cou
thahlnce the·ol-dlrtancedhl not -
''al'riculture", or· ~'agticU.ltl1r81
term .would· have to' be interpre . , ..
applied· hi accordance with: ltS ti
and generally .accepted· meaning/>
clearly · the . word. "agrlculture(l;,.
the .ordinance did noti mean ori,ly
tilling of the soil, and the raisin~'
housing of turkeys was well: wJ
the reasonable ·meaning of. th.e:. '
and that ·It was eign!ti,ea.nt th11t1
term ''e:grlcµlture'' wasi used,_,l'i,
than "farming," which might well.
pose a far different connotation ..
court·;afeo concfuded "that ·t'ha 'con
plated use of the'prop~rty was not p-··
eluded ~y ~he provis~on O]\'.Ceptln~c
ta.In .. commercial u~~· .front the'.
allowed in an agricultural dlllt
the c<1urt saying that the llrovr~
was not Intended· to ·entail art' ·Ii
cultural busin-ess_.1
')
See Winship v Inspector of Buii
ANNO: zo~r
• gs (1931) 274 Mase \~fra § 8, where th
sidence zone of a ~~ housing 1,000 chic!
missible under an or
. g the erection < 1n ••farm, garden, nu
house" purposes in ~
See also De Benec
Tp. (1952) 21 NJ S
353 infra § 8, lnvol
the' plaintiffs, who
commercial chicken
roperty In a reel• ~rect a new building
dditional chickens.
:d out that at the ·
lated that the plain•
ness was a farming
In Board of Coon·
(l9 58) 188 Kan 19,
owner of land in at
which was zoned f•
poses converted a
property into an a
pose of raising can
after this building
fire, she obtained
another building 2E
a part of which sh.E
canaries. and in an:1
her son-ln.-law opl
body repair shop .. •
the use of the pre
and repair. shop.~
such 'use . was a '
regulatlons, .. ·,:no cc
as to the · use o!
raising ·CanarJes,
intervened and, 1
judgment grantln
contended·that th
ises for raliilng ca
commercial use,""'
the zoning board 'I
for the construct!•
ing with the knov;
be conimerclally ~
to a rezoning of ti
merclal use. On
said that under ti
tlon almost any
would be "for a '
but that· It cou·.
equivocation that
2. The landowr
~OTATED
ra"1ng. ;, t 9 I poultry ralslnll'i
been recognized &If!'
-_!! "farming" and,~1'·.
oen held permissibr
regulations perttif
•r farming In certa
~r;::V
v Zoning Boardi>Of'
·s2) 408 Pa 2ao,:1s2.,
~4 697, where the 'aj,
a zoning pefmit1fo ~
of 16 "pole barns~·.·
tract of farmland,;.·
~ In a township: lu!
, and it appeared;tllii
·•Ired to use the' Jail
,000 to 50,000 turl<ey,S:
!n which would ·.'p.l'i
"' 8,000 to 4,000 of
court concluiied ilit
templated uile ouu·.1a
\ilal,'' it was !aJ80'J~'8;
' was permissibfo !ull ·
-the zoning ·ordinan
t~d "agrlculture··ancl\
~:ntal to the. prdces'
• g of farm •. prod ti
rtaln prohibited •uB ·
lldlngs which' •lilcf'
, commercial slau·
ets; litocl<yarilli) ,-
~!'tJ_· all otliertpo ·
nature.'' ·.•The co··-·
ol-dlnance''Clt'. o
' or: ~'agrlcUl -.
ve•tO be,lnt6ril>;
:<>rdance ·!Wftb'ti
~cceptedomeanj
word.· 'cagrlcUI
did no ti .meal>) ·
.~!I; and thecraliil!I
rkeys was,., :II'~! ·
·meaning 11f, t ·
:••. signltli:a.11~:
i.~re'' 1\1'.&~i ysg
," which might. ~
:&ent conno tlO ~
:f~ded'thk " '
.e property·CW&s .
t1o,y~sl~~,~ t ~-U~B , , < 1agrl~1Htiir~I
~ ;t that 'th&'I.
ded to entail' .:::~ •. · .. '.·'~;I ·;0~
v •Inipectoi<• IQ
""···.ir-.
• • ANNO: ZONING-FARMING OR AGRICULTURAL "USES '109'
ing• (1931) 274 Mass 880, 174 NE 476,
infra § 8, where the erection in a
residence zone of a building capable
of housing 1,000 chickens was held per-
missible under an ordinance authoriz..
ing' the erection of buildings for
"(arm, garden, nursery or green-
house" purposes in such a zone.
See also De Benedetti v River Vale
TP· (1952) 21 NJ Super 480, 91 A2d
358, infra § 8, involving the right of
the plaintiffs, who were engaged in
commercial chicken farming on their
property in a residence district, to
erect a new building for the housing of
additional chickens. The court point-
ed out that at the trial It was stipu-
lated that the plaintiffs' chicken busi-
ness was a farming business.
In Board of County Comrs. v Brown
(!958) 188 Kan 19, 825 P2d 882, the
owner of land in an agricultural area
which was zoned for residential pur-
poses converted a building on the
property Into an aviary for the pur-
pose of raising canaries for sale, and
after this building was destroyed by
fire, she obtained a permit to build
another building 26 feet by 50 feet, in
a part of which she continued to raise
canaries and in another part of whfch
her son-in-law opened a ·garage and
body repair shop •. In !' suit to enjoin
the use of the premises for a garage
and repair shop on· the ground that
such use was· a violation of zoning
regulations, no complaint was made
as to the use of the property for
raising canaries, but the son-in-law
intervened and, on appeal from a
judgment granting the Injunction,•
contended that the use of the prem-
ises for raising canaries constituted a
commercial use, ·and that the action of
the zoning board in granting a permit
for the construction of 'the new build-
ing with the knowledge that it was to
be commercially used was tantamount
to a rezoning of the premises for com-
mercial use. On this point the court
•~id that under the appellant'• de(inl-
t1on almost any agricultural pursuit
would be for a commercial purpose,
but that It could be said without
equivocation that the raising of canary
2. The landowner did not appeal.
•• birds was similar to the raising of
chickens or other poultry, which was
commonly regarded as an argicultural
pursuit, and that In this sense the
owner's use of the premises for rats-,
Ing canaries was consistent with the
permissive uses.
+
In other cases, however, where com-
mercial poultry raising has not been
carried on in connection with general
farming operations, but has been an
independent or dominant enterprise, It
has been held that such business was
not "farming" within the meaning of
zoning regulations permitting farming
In certain districts.
The proposed erection of a poultry
house for the accommodation of from
800 to 1,000 chickens upon a lot ap-
proximately 200 feet wide in front and
182 feet in the rear, located In a resi-
dence zone and containing less than 8
acres, was held in Chudnov v Board
of Appeals (1981) 118 Conn 49; 154
A 161, not to be permissible under a·
zoning regulation authorizing the use·
of premises and the erection of build-
ings for "farming, truck gardening,
nurseries or greenhouses/' the court:
saying: "The 'limitation~ jnherent In
the, term. 'farming' a·s emplOyed .fn·.
these and. many, other zoning ordi-
nances and regulations are indicatedi
and emphasized by the : enumeration;·
with It, of . other permitted llse~:'
Here, as in most, &re mentioned 'irU6k'
garOenlng, nurseries or green~ou-ses,'<
all· of which, In a degree, ·involve the·
tillage of the soil and production of
crops, and in that respect lire not in-
appropriate to· farming In the broad·
sense. That It Is deemed necessary·
to specify these enterprise• as ·per-.·
mltted negatives an Intent that.others,.
Jes• obviously related to 'farming,' are'
to be allowed not only' In· connection·
with and Incidental ·to· recognized·
farming operations, but also as a dis-
tinct and independent business and
use. Under this and similar provisions:
of zoning ordinances, • • • the appli-
cation of the test-whether the pro-
posed use is ·fairly to be considered
as incidental to farming operations
and therefore permissible,' or, on the
other hand, an independent or doml-.
• 710. AMERICAN LAW REPORTS, .ANNOTATED ......
nant enterprise, and· as such ·ex-
cluded-may often present and de-
pend upon questions of fact, or involve
or be open to a legal exercise of dis-
cretion b:y the administrative officials
and the·.board of appeals. No such
doubtful question of fact ls presented
b:y the Instant case, however. The
situation of the appellant as to quan-
tity of land and proposed buildings
Indicates, and the finding states, that
he Intends to carry on the raising of
chickens as a business and means of
livelihood; no ground is. afforded for
a claim that he proposes to engage
In 'farming;• within the ·meaning of
any admissible definition or conception
of the term, and· to make of his poul-
try business only an incident thereof."
See Colasuonno v Dai!sler (1944) 183
Misc 904; 51 NYS2d 870, Infra: § 8,
holding that a proposed building 30
feet wide b:y 100 feet long .to be
erected on a 2l-acre tract In a resi-
dence zone as a place. for housing.
chickens did not constitute a:·"farm''
within the meaning of a provision of.
a zoning ordinance which permitted,
'~farms, truck garden&, nurseries·. or:
greenhouses'.' ·in ·A ·residerice zone.
the plaintiff to cease and desist r
constructing buildings and oper. aJ
a hog farm on a 160-acre tract w,1)
was within the 8-mile zoning be(~
Wichi~ In a residential zone. '!"!!,
was evidence that the plaintiff wa
college graduate In animal husb111i
and used scientific methods In rals
hogs, in. which business he had .b~
engaged since 1918; that he, ,Ii
formerly owned a farm soutb '
Wichita, but that after a highway. fij
cut through that property ·he. 'b
bought the 160-acre tract In quea~i~
that he usually bought two group.a ·
hogs per :year, . keeping eac)l . 11rn
from 90 to 120 days, thus havll)lfo ·
hogs for about 6 months of the .:y0
that the maximum number of hogs,
would have would be 2,500; and, ~
he .planned to build a, $25,000 Ji~!\ •.
on the property. The court sald,t~
It would have difficulty In holding,t~·
the plaintiff's business was not wit
the general realm of agriculture,.~t
the trial court had held that the b
riess Was commercial in na.ture ra.t1J
than agricultural, but that .It w
g"enerall:r true that all agrieultH·
products, whether crops or . lives .
were raised and kept until 'read,{
§ 5. Hog raising. · . ; . . , sale, and .. that crops were·: ot
.;r!'he operation o( '11:hog ~arm:.has. t)l~ug1,1,t to brinir,,n:~re b:y mar)\et
l!ee11 .11eld tq ,come;.'IV!t)lin, t)l~ ,g~n~rl\1. them. on the h 0ot.. . . ,, ,,,11 realm ,of.agrlc_u.lturq \l,i!d. ~c.l>F.,Per' ... , : .... ··;: ,, ,, -+;., .. . ''''"''"'"
m!sslble under, \I sU\t.11~ .,,.µthorl~lng, .. Ho\fever, .. premises used .filr !
certain <zoning but. provldlr\g tl\a.t .no. ~&Ising of. hogs ti) .the t<ixcJui.!~
regulations should apply, to the.·use. other agricu\t.ura).· pursujts .•... sµc. ):ii:··
of land for agricultura.1 purposes.', ; the cultivation of crops, Jtaye .,li• ·
·. In Carp v Bollrd of County Comrs.: . held not to come. within. the m~·.
(1962) 190 Kan •177, 878 ,P2d 158,. Ing. of zoning regulations permit ·
where a statute :authorizing ·a .8-mlle "farms" .in certain districts.· .•.• , ·
zoning belt· around.· i cities •and ,,prp-. · . Where c.ertaln premises. within
vided that the county commlssiQners elngle·resldence,;,district ,Jn. a .~
could· divide such territory lntq dis-were.devote\) prl11clpally,toJ\l~·ra!~I
trlcts; but the·statut<i.further provided of .approxlmat.'ll:r: 2,10;0 ,bogs, .and,lf
that no.regulatlonu1hould.apply to,the. a negligible. amount of the.:land 'IV
use .Of land for agrlc.ultural :purpos,ee .. c.11ltlvated. foi: .. ·,C~opii, no,;1itl)<i'r,J,1
nor for the erect1Qn•.01'o.maintenanc.e. stock '\Vas,kept,.no food was pr~du ,
of buildings. thereon . as ')Qng, as. sU.\>b on the pr~mise~ for ,tb,e .ho.l!'s, .a11d,
buildings were .used··strlctl:y,foriagrb, proper,ty was not equlppecf,,wlt)l,'
cultural purposes,.lt was held th.at .. ln lmplem~nts,. of, .. farmlng, ,n0r .w
Kansas <agriculture Included .animal. s,heds, barns, pr .. bull.dll)g~ .. :fo,,1',,
husbandry; and that .. the· board. ·Of· housing of: livestock, it. was .bed·
county commlssioners,and the county Lincoln ,,.·.Mur)ih:y. (1943)' si4' ~.
zonlng·admlnlstrator had not had au-. 16, 49 NE2ii 458, 146 ALR' 119G, 'tb,
tliorit:y •Under tho ilbitute .to require, the.: prei:nJs.ep, '\V!'re. m11lnta,lned, &~S .
'
ANNO: 'ZOl
piggery and not 1
the meaning of a
mitting the use o
greenhouses, nurse
dens; and the sal•
in the town or on
Attention Is cE
Burlington (1950)
NE2d 212, a case:
of this annotatlo
which It .was poln·
zoning bylaw ot •
permitted In a R
except where lnj
offensive .to th~
that It was pro•
that farming did :
ing or raising '<
swine.
In Mt. Pleas•
(1957) 7 Misc .:
458, affd withou·
880, 177 NYS2d I
tract of land was
which, b:y zonin1
stricted generall
office building us
expressly permit
garde_nlng, .. nlirt
uses In the dis 1
an ts were e_ng•I·
raising pigs 'tor::
premises,' · tlie ··.
was clear' th~f~
being · u~~!!;°l'l.','I
opera tlorili c;if til
were iiot "farnit
meaning li~cf.ll!e
court pointed 'c;>.U
on the p'reriilses,
a time, were prl
or sties whlcb oc
tivel:y small par1
that they, 'i"ere. 1
way bi prodµc<
were fed clilellY
products bl'<!~S'b
that· also tlie¥•'
era) tllllrili. or l
crops of any d
acr·e tract. ·:-' ' ·:
In Jo)\nlion ;
Misc 806, 18,6 !
petltlol)ei.;I; who
situated Iii a r
town, sought a
•
=
)
• • 1450 AMERICAN LAW REPORTS, ANNOTATED 40ALR2d
might justify such an award even in
the absence of benefit to the estate, the
court said that such a construction
could not have been intended, since
it would be calculated to promote liti-
gation by dissatisfied persons knowing
that, win or lose, the expenses would
be borne by the estate.
And in Olney v. Sheppard (1931)
275 Mass 496, 176 NE 198, the trial
court's refusal to charge the estate
for attorneys' fees of the unsuccessful
contestant was held a proper exercise
of discretion under the statute, the
court noting the trial judge's state-
ment that the contest was of no benefit
to the estate since it greatly increased
the proponent's expenses and delayed
settlement of the estate.
And in Podesta v. Podesta (1945)
28 Tenn App 282, 189 SW2d 413, it
was held that an unsuccessful contest-
ant should not be allowed fees from
the estate, since he acted in hie own
interest and not for the benefit of the
estate.
However, in Re Schikoweky's Estate
(1942) 155 Kan 815, 180 P2d 598, it
was held that the trial court's refusal
to allow an unsuccessful contestant of
the will to recover attorneys' fees
against the estate was error, the court
saying that the litigation was benefi-
cial to the estate since it resulted in
establishing the validity of a trust
provided for by the will.
And In holding that an attorney ap-
pointed by the court to represent ab-
sent legatees under an earlier will
could recover from the estate a fee
for his services in unsuccessfully con ..
testing the later will in the trial court,
the court in Re Otting's Estate (1934)
62 SD 268, 252 NW 740, said that the
services of such an attorney were.
beneficial to the estate since they aid-
ed the court in determining that an
apparent interest was not in fact an
actual interest, and that that deter-
mination was for the benefit of the
Where the testator's widow, named
as co.executrix, filed an answer pur-
porting to sustain a will against .con-
test uin so far as same is consistent
with truth, honesty and fair dealings,"
but throughout the contest proceed-
ings she evidenced her hostility to the
will and indicated that it should be
upset and that it was invalid, it was
held in Ex parte Robinson (1940) 196
SC 186, 12 SE2d 701, that after the will
was sustained the trial court properly
refused to allow her attorneys' fees as
a charge against the estate, since the
fees were incurred, not in carrying out
her duties as executrix, but for the
purpose of advancing her own private
Interests.
persons who finally participated in the ·.\"
estate, since It enabled the court af-; .•. > ''••.i.
firmatively to declare the Interest of. i.·;;. .' .. · \~:,
such persons. . ·· ·~~· .. :.,"). -.-:.::-·:·-j
W. E. Shipley. .iit:
+Consult ALRZd SUPPLEMENT SERVICE for subsequent cases+
TOWN OF NEEDHAM
v.
WINSLOW NURSERIES, Inc., et al.
Massachusetts Supreme Judicial Court -April 2, 1958
(880 Mass 95, 111 NE2d 458, 40 ALR2d 1450)
SUMMARY OF DECISION
An injunction against alleged violations of a zoning law was sought In
the instant action against one engaged in a greenhouse and nursery busi-
ness, and various activities claimed to be incidental thereto, in a single-
residence district. "Greenhouses" and "nurseries" in the district were
specifically authorized by the law.
~·,_ 'c.·
A decree subE
pre me J udiclal I
J., held that the
common and apJ
scope of greenb
of the law, as E
the sale of nurs
or purchased els
on the premises
the sale of ferti
to such as were
plants sold; the
limited to prepa
nursery; the us1
soil of the nurS1
reasonable park
necessary to th1
further held not
garden tools and
of signs and bull
Permissible
;
Zoning § 18 ~::
"greenhou1· lnterpretatl ·
1. A zoning I
of land in ·a al
for '1greenhous ~
to be Interpreted:>
mon and approte
guage without ejil
tion, where there
to indicate that It
ploy the words( i
ordinary sense. z-·.
[Arill
Trial § 158 -~ constructlo~~ • 2, The mean!
and "nurseries, .· zoning Jaw fn :i
trict, are ques :c
court.
[AllJI
Zoning § 18 -!
"greenhouse&.
8. A "greenho61
a zoning law In a 1
·E.D 40 ALR2d
' v. Podesta ·(1945)
189 SW2d 413, it
successful contest-
allowed fees from
• acted in his own
· the benefit of the
ohikowsky's Estate
5, 180 P2d 598, it
ial court's refusal
;sful contestant of
.r attorneys' fees
·as error, the court
gation was benefi.-
ince it resulted in
lidity of a trust
will.
~t an attorney ap-
~ to represent ab-
r an earlier will
the estate a fee
nsuccessfully con-
! in the trial court,
ng's Estate (1984)
740, said that the
:_n attorney were
~te since they aid-
~errnining that an
'as not in fact an
: that that deter-~
h• benefit of the p~rticipated in the.
!ed the court af-
re the Interest of· ·•.
. •'it.~ .""~~·~· ."
W. E. Shipley.
::t cases+
; 2, 1958
450)
w was sought in
nd nursery busi-
reto, in a single-
he district were
t#t t
• • NEEDHAM v. WINSLOW NURSERIES 1451
(110 Mass 95, 111 NE2d 461, 40 ALRld 14&0)
A decree substantially adverse to the plaintiff was reversed by the Su-
preme Judicial Court of Massachusetts, which, in an opinion by Williams,
J., held that the disputed words were to be interpreted according to their
common and approved usage, rather than with reference to the customary
scope of greenhouse and nursery businesses at the time of the enactment
of the law, as shown by extrinsic evidence; and that, as so interpreted,
the sale of nursery stock was limited to such as was grown on the land,
or purchased elsewhere and transplanted for growth on the land, or stored
on the premises with such treatment as to keep it alive for resale in season;
the sale of fertilizers, fungicides, sterilized soil, and the like, was limited
to such as were intended to preserve the health and life of the nursery
plants sold ; the maintenance of a landscaping contracting business was
limited to preparation for the planting of trees and shrubs sold from the
nursery; the use of a soil sterilization plant was limited to improving the
soil of the nursery; and the maintenance of a parking lot was limited to
reasonable parking space for customers of the nursery, and for trucks
necessary to the delivery of the nursery products. The zoning law was
further held not to authorize the sale of Christmas trees and wreaths, or of
garden tools and equipment, or advertising signs not within the description
of signs and bulletins specifically permitted by the law.
SUBJECT OF ANNOTATION
Beginning on page 1469
Permissible activities under zoning laws permitting greenhouses
and nurseries.
HEADNOTES
Classified to ALR Digests
Zoning § 18 -rermltted uses -trict, refers to a building principally
"greenhouses' -"nurseries" -constructed of glass wherein plants,
Interpretation. flowers, and sometimes vegetables are
1. A zoning law authorizing the use raised ·for purposes of sale; a green-
of land in a single-residence district house business involves the cultivation
for "greenhouses" and "nurseries" is -of these or similar products of the soil
to be interpreted according to the com-and the disposal of them to purchasers.
mon and approved usage of the Ian-[Annotated]
guage without enlargement or restric-Evidence§ 769; zoning§ 18 _ permlt-
tion, where there is nothing in the law ted uses _ "nursery" _ extrinsic
to indicate that it was Intended to em-evidence.
ploy the words in other than their 4. Extrinsic evidence is not required
ordinary sense. to ascertain the meaning of the term [Annotated] • • I 'nursery,' as used n a zoning law
Trial § 158 -questions for court -
construction of zoning law.
2. The meanings of "greenhouses''
and "nurseries.'' as authorized by ·a
zoning Jaw In a single-residence dis-
trict, are questions of law for the
court.
[Annotated]
Zoning § 18 -p,ermltted uses -
,_greenhouses. '
8. A "greenhouse," as authorized by
a zoning law In a single-residence dis-
permitting such use in a single-resi-
dence district, the dictionary defini-
tion of such term being a place where
trees, shrubs, plants, and so forth, are
propagated from seed or otherwise for
transplanting, for use as stock for
grafting, and for sale.
[Annotated]
Appeal and Error § 714 -review of
court findings -violation of zon-
ing law -questions of Interpreta-
tion.
5. Findings as to alleged violation
' I
:1 ,i
:i
" ..
I
1452 AMERICAN lw REPORTS, ANNOTATED • 40ALR2d
of a zoning Jaw authorizing "green-
houses" and .,nurseries" in a single-
residence district will be disregarded
by the appellate court, where the gen-
eral conclusion of the trial court, al-
though largely based on oral testi-
mony, is founded on an erroneous con-
ception of the meaning to be attached
to the words in dispute.
[See Am Jur, Appeal §§ 895-912.]
Zoning § 13 -permitted uses -Inci-
dental or accessory uses.
6. An incidental or accessory use
under a zoning Jaw is a use which is
dependent on or pertains to the princi-
pal or main use.
[See Am Jur, Zoning § 46.]
Zoning § 18 -permitted uses -
ugreenhouses" -0 nurseries."
7. A zoning law authorizing the use
of land in a single-residence district
for "greenhouses" and "nurseries" is
not violated by the sale thereon of
nursery stock. grown on the land, or
purchased elsewhere and transplanted
for growth on the land, or stored there-
on with such treatment as to keep them
alive for resale in season.
[Annotated]
Zoning § 18 -permitted uses -sale
of Christmas trees and wreaths.
8. The sale of Christmas trees and
wreaths is not part of, or incidental
to, a nursery or greenhouse business
authorized by a zoning law in a single-
residence district.
[Annotated]
Zoning § 18 -permitted uses -sale
of garden tools and equipment.
9. A zoning law permitting a green-
house and nursery business in a single-
residence district does not thereby au-
thorize, as incidental thereto, the sale
of garden tools and equipment, al-
though it does authorize the sale .,,
customers of its plants, and such
fungicides, insecticides, chemicals,
peat moss, humus, mulches, and fer-
tilizers as are intended to preserve the
health and life of the plants sold.
[Annotated]
Zoning § 18 -permitted uses -
greenhouse and nursery business
-landscaping.
10. A zoning law permitting a green-
house and nursery business in a Single-
residence district authorizes the use
of the premises for the incidental
business of landscaping private estates
and housing projects as preparation
of land for the planting of trees and
shrubs sold from the nursery, but does
not authorize use of the premises as
headquarters for a contracting busi-
ness involving the planting of stock
which has not become a physical part
of the nursery, or for the parking of
trucks used for the latter business.
[Annotated]
Zoning § 18 -permitted uses -
greenhouse and nursery business
-soil sterilization plant.
11. The use of a soil sterilization
plant is a permissible accessory use
to a greenhouse and nursery business
authorized by a zoning law in a single-
residence district, if it is limited to
improving the soil of the nursery, but
the right to sell the sterilized soil is
restricted to such as is intended to
preserve the health and life of plants
sold from the nursery.
[Annotated]
Zoning § 18 -permitted uses -' •'-" gre:d:::ii:i:;~i;~:~ery business -;~';.~L,:-,:~.-.. ·.·_·.· ..
12. A zonin~ law permitting a green-, '"r};~;:
house and nursery business in a. sin~. :
gle-residence district does not thereby'"'.'
authorize the use, on the premises, of ~
advertising signs not within the d0::\
scription of signs and bulletin boards·
specifically permitted by the law. ·1"
[Annotated]
Zoning § 18 -permitted uses -,. ·
greenhouse and nursery business
-parking lot.
18. A zoning law permitting a green-
house and nursery business in a sin ..
gle-residence district authorizes use
of the premises, in the absence of a
specific restriction, for a reasonable
parking space for automobiles of cus-
tomers, where it does not appear that
the use thereof would be of such na-
ture and extent as to imp~ir the resi~·' ,
dential character of the neighborhood. ,
[Annotated] ·
REPORT of case upon pleadings, evidence, and findings of material factf
and by Superior Court, upon ordering decree favorable to defendaJ?ts
in bill by plaintiff town to enjoin violation of zoning bylaw. Reversed with
directions for final decree.
NJ
Before Qua, Ch.
Ronan, Williama ari
Henry W. Hard·
plaintiff: , '
The interpretatio
eluding bylaws) is•
determination by iji·1
aid of extrinsic evld
is ambiguity in the
ute, the court willcir
wording for_ an lp1
tick v. Boston & i;A
Mass 229, 232, 96fil
Brown, 49 Mass (8
ware & Hudson Cd1-·
ing Co. 828 Mass iii!
Boston Consol. Gal'f
of Public Utilitiel/l!.
NE2d 548; Atty. tJ,
820 Mass 598, 70
A new meaning
the words of an o
quence of the ch
a time later tha
that statute. Du
of Civil Service, 2
889, 87 ALR 998.
The various per
stock farms, gre
and truck ·garde
graph 6 of the.plal
must be dealt ,wit
being In a broa'd;'s
use of land; K6itn
of Melrose; 815lM
150 ALR 490;ii .. ~
An exemjlt(od
poses l1nnuc "
farms, ''.l!fe,l\n
truck ·garcle ""
stant case· ' ,; ·
preted with 'Boll,!;·
v. Murphy, 8lil;_...,,
146 ALR 1196;"'1"·
The activltiesf.
which go bey'ond{
and nursery stock.
plants and stock,,·
premises are U!elr
tiff's--bylaws. "'\K
Comr. of ·Melrolf
NE2d 688, '150~
Pierce County,';1'18
405; Hill v;'Ge0i'a't
Com App) 45'-&WJ
State Board 'oOJu
The legislati~~'.
tained from· all th"
giving to each'}ii
effect and wlthou
part at the expense
together they' ii.UC>:
piece of leglslatio
TED 40 AL'R2d
business in a Single...
authorizes the use
for the incidental
:.ping private estates
ects as preparation
1~nting of trees and
~.e nursery, but does
of the premises as
a contracting busi·
-;; planting of stock
•ome a physical part
r for the parking of
.e latter business.
•otated]
permitted uses -
.-..d nursery business
izatlon plant. ·
-a soil sterilization
ssible accessory use
ond nursery business
:oning law in a single-
t, if it is limited to
il of the nursery, but
the sterilized soil is
-h as is intended to
!th and life of plants
1rsery.
notated]
permitted uses -~,~"
!!...._d nursery business · ~.,,~~
,g signs. . :( ~:\t-
o W permitting_ a green-. ·' .. ~,
:ry business .in a. sin:.·._·_·
trict does not thereby:,.-·
e, on the premises, of':':.;
s not within the d ,
• and bulletin boar!l•
•ltted by the law~ """'l
• notated] "·
permitted uses ...,..,·
and nursery business
lot. .
aw permitting a green~. 'l.
ery business in a sin'." /
istrict authorizes use_
., in the absence of & .
!on, for a reasonable ·
or automobiles of cus,: .
t does not appear that '
would be of such na~
as to impair the resl-· ..
•r of the neighborhood:
.nnotated] -..
ngs of material fact. -~.
orable to defendants · ·
•ylaw. Reversed with. '
• • NEEDHAM v. WINSLOW NURSERIES 1453
(880 Mass 95, 111 NE2d 453, 40 ALRZd 1410)
Before Qua, Ch. J., and Lummus, common sense and souhd reason.
Ronan, Williams and Counihan, JJ. Commissioner of Corporations & Taxa-
Henry W. Hardy, of Boston, for tions v. Springfield, 321 Mass 31, 36,
plaintiff: 71 NE2d 593; Meunier Case, 319 Mass
The interpretation of statutes (in-421, 66 NE2d 198; Tilton v. Haverhill,
eluding bylaws) is a matter of law for 311 Mass 572, 42 NE2d 588.
determination by the court without the A town has the power to regulate
aid of extrinsic evidence; unless there the use of signs. Milton v. Donnelly,
is ambiguity in the wording of a stat-306 Mass 451. 28 NE2d 438.
ute, the court will not go beyond that That land may be used in a more
wording for an interpretation. Na-profitable way is of slight significance
tick v. Boston & Albany R. Co. 210 in determining the validity of a zoning
Mass 229, 232, 96 NE 347; Brown v. bylaw. Spector v. Building Inspector
Brown, 49 Mass (8 Met) 573: Dela-of Milton, 250 Mass 63, 145 NE 265.
ware & Hudson Co. v. Boston R. Hold-John V. Phelan, of Needham, and
ing Co. 323 Mass 282, 81 NE2d 553; Louis J. Ferrari, of Brighton, for de-
Boston Consol. Gas Co. v. Department fendants:
of Public Utilities, 321 Mass 259, 72 Evidence of the custom and usage
NE2d 543; Atty. Gen. v. Springfield, of the trade in the nursery business
320 Mass 598, 70 NE2d 839. is admissible on the issue of construc-
A new meaning cannot be given to tion of the words "greenhouses" and
the words of an old statute in conse-"nurseries" as used in the zoning by-
quence of the changed conditions of law. GL (Ter ed) ch 4 § 6; Moulton
a time later than the enactment of v. Building Inspector, 312 Mass 195.
that statute. Dunn v. Commissioner 198, 43 NE2d 662; Commonwealth v.
of Civil Service, 281 Mass 376, 183 NE S. S. Kresge Co. 267 Mass 145, 148,
889, 87 ALR 998. 166 NE 558; Kenney v. Building Comr.
The various permissive uses (farms, of Melrose, 815 Mass 291, 52 NE2d 683,
stock farms, greenhouses, nurseries, 150 ALR 490; 9 Wigmore, Evidence
and truck gardens) under subpara-3d ed §§ 2567, 2568a, 2582 (3); People
graph 6 of the plaintiff's zoning bylaws v. Mayes, 118 Cal 618, 45 P 860: State
must be dealt with as a group, each v. Kincaid, 133 Or 95, 285 P 1105, 288
being in a broad sense an agricultural P 1015: Brown v. Piper, 91 US 87, 42,
use of land. Kenney v. Building Comr. 23 L ed 200, 201; Commonwealth v.
of Melrose, 815 Mass 291, 52 NE2d 683, King, 150 Mass 221, 22 NE 905, 5 LRA
150 ALR 490. 586: West Boylston Mfg. Co. v. Board
An exemption for agricultural pur-of Assessors of Easthampton, 277 Mass
poses Is much broader than one for 180, 187, 178 NE 531: 48 CJ 569, Mu-
farms, greenhouses, nurseries, and nicipal Corporations § 904. See Wins-
truck gardens. The bylaws in the in· low Bros. & Smith Co. v. Hillsborough
stant case must therefore be inter-Mills, 819 Mass 137, 65. NE2d 1 .
preted with some strictness. Lincoln The same rules of construction must
v. Murphy, 314 Mass 16, 49 NE2d 453, be observed In construing a municipal
146 ALR 1196. bylaw as apply in the construction of
The activities of the defendants statutes. 43 CJ 569, Municipal Corpo-
which go beyond the raising of plants rations § 904. See Winslow Bros. &
and nursery stock and the sale of such Smith Co. v. Hillsborough Mills, 319
plants and stock as are raised on the Mass 137, 65 NE2d 1.
premises are illegal under the v.Jain-So far as the finding of fact is based
tiff's bylaws. Kenney v. Bmlding on oral evidence, it should not be dis-
Comr. of Melrose, 315 Mass 291, 52 turbed unless plainly wrong. Grocer
NE2d 683, 150 ALR 490; Miethke v. v. Montifore Cemetery Asso. 307 Mass
Pierce County, 178 Wash 381, 23 P2d 45, 29 NE2d 813; Trade Mut. Liability
405; Hill v. Georgia Casualty Co. (Tex Ins. Co. v. Peters, 291 Mass 79, 84,
Com App) 45 SW2d 566; Atty. Gen. v. 195 NE 900.
State Board of Judges, 38 Cal 291. The activities of the defendant cor-
The legislative intent is to be ascer-poration complained of are fully per-
tained from all the terms of a statute, missible within the bylaw, even when
giving to each part its appropriate construed narrowly in accordance
effect and without emphasizing one with the plaintiff's own definition, as
part at the expense of another, so that accessory uses reasonably and prop-
together they all make an effectual erly incident to the primary nursery
piece of legislation in harmony with business authorized by the bylaw.
.,,
·11 1454 AMERICI LAW REPORTS, ANNOTATED • 40ALR2d
Royal Baking Co. v. Oklahoma, 182
Okla 46, 75 P2d 1105; Moulton v.
Building Inspector of Milton, 812 Mass
196, 43 NE2d 662; Kimball v. Blan-
chard, 90 NH 298, 7 A2d 894; King
v. Viscoloid Co. 219 Mass 420, 425,
106 NE 988, Ann Cas 1916D 1170, 7
NCCA 254; Tranfaglia v. Winchester,
806 Mass 495, 28 NE2d 537; Swan
v. Justice of Superior Court, 222 Mass
542, 547, 111 NE 386; Burrage v. Bris-
tol County, 210 Mass 299, 96 NE 719;
Sawyer v. Davis, 136 Mass 289, 245,
49 Am Rep 27; Murtha v. Lovewell,
166 Mass 391, 394, 44 NE 347, 55 Am
St Rep 410. See Winship v. Inspector
of Bldgs. of Wakefield, 274 Mass 380,
174 NE 476.
Trucks and like equipment being nec-
essarily incident to the permitted busi-
ness, the storage and maintenance of
such equipment on the premises is
proper. Royal Baking Co. v. Okla-
homa, 182 Okla 45, 75 P2d 1105.
The uses permitted under the bylaw
are not limited to those which do not
impair a residential neighborhood.
Moulton v. Building Inspector of Mil-
ton, 812 Mass 195, 43 NE2d 662.
Defendant's advertising signs are
permissible under section 8 of the by-
law. Kenney v. Building Comr. of
Melrose, 815 Mass 291, 295, 52 NE 688,
150 ALR 490; Murtha v. Lovewell,
166 Mass 891, 894, 44 NE 847, 55 Am
St Rep 410; Sawyer v. Davis, 136 Mass
239, 245, 49 Am Rep 27. See Kimball
v. Blanchard, 90 NH 298, 801, 7 A2d
894; Pittsfield v. Oleksak, 818 Mass
553, 47 NE2d 980.
The parking area Is on the same Jot
with the building of the owner or
Jessee within the meaning of § 12 of
the bylaw. Murtha v. Lovewell, 166
Mass 891, 894, 44 NE 847, 55 Am St
Rep 410; Bancroft v. Boston ·Bldg.
Comr. 257 Mass 82, 89, 158 NE 819;
Curtis v. Boston, 247 Mass 417, 426,
142 NE 95; Watertown v. Dana, 255
Mass 67, 150 NE 860, 44 ALR 1874;
People v. Krinka (Sp Seas) 177 NYS
846, 847; Tranfaglla v. Building Comr.
of Winchester, 806 Mass 495, 28 NE2d
587. See Wilbur v. Newton, 802 Mass
88, 89, 18 NE2d 865; Inspector of
Bldgs. of Lowell v. Stoklosa, 250 Mass
52, 62, 145 NE 262.
A lot Is a unit of real property, the
word designating the land exclusive of
improvement upon it. Elements of the
umty required may be found in sin-
gleness of ownership, entirety in use,
separation by physical environment,
or custom of community. People v.
Krlnka (Sp Sess) 177 NYS 846, 847.
Edward 0. Proctor, of Boston, as
amfcus curiae:
It was proper for the court to define
nurseries and greenhouses in the zon.
ing bylaw in the light of the custom
and usage of the business as generally
practiced at the time of its enact ..
ment. Dorr v. Tremont Nat. Bank, 128
Mass 849, 860; Brown v. Brown, 208
Mass 290, 291, 94 NE 465; Cabell v.
Markham (CA2d NY) 148 F2d 737,
739; Farmers Reservoir & Irrig. Co.
v. McComb, 887 US 755. 764, 93 L ed
1672, 1681, 69 S Ct 1274; Watson v.
Maze, Rap Jud Quebec 15 CS 268, 272;
Patton v. Los Angeles Pacific Co. 18
Cal App 522, 123 P 618; Chicago &
E. I. R. Co. v. Public Serv. Com. of
Indiana, 185 Ind 678, 114 NE 414; J.
W. Kelly & Co. v. State, 128 Tenn 516,
182 SW 193; 50 Am Jur, Statutes pp
252, 258, § 260; p 278, § 297; 11 NYU
LQ Rev 538, 542 (1934), Textual In-
terpretation of Statutes; Higgins'
Case, 284 Mass 845, 187 NE 592;
Foster v. Beverly, 815 Mass 567, 569,
58 NE2d 693, 151 ALR 737; Commis-
sioners of PubJic Works v. Cities Serv ...
ice Oil Co. 308 Mass 849, 860, 82 NE2d
277; Commonwealth v. Welosky, 276
Mass 898, 401, 402, 177 NE 656; Win-
slow Bros. & Smith Co. v. Hillsbor-
ough Mills, 819 Mass 187, 141, 65 NE
•.
,·' 1
2d 1; O'Hara v. Luckenbach S. S. Co.
269 US 864, 70 Led 818, 46 S Ct 157; .·,.
West Boylston Mfg. Co. v. Board of ii/'•'
Assessors of Easthampton, 277 Mass .~r.-· ~-~ _;_ .--::-.
180, 187, 178 ~E 581; Carter v. Liquid.· '. ~;''·'' ·
Carbonic Pacific Corp. (CA9th Clll) ,,,.
97 F2d 1; Lincoln v. Murphy, 814 Mass ·
16, 19, 49 NE2d 458, 146 ALR 1196;
Moulton v. Building Inspector of Mil-
ton, 812 Mass 196, 198, 48 NE2d 662;
Whitmarsh v. Charter Oak Fire Ins.
Co. 84 Mass (2 Allen) 581, 588; Wilson
v. Colonial Air Transport, Inc. 278
Mass 420, 426, 180 NE 212, 88 ALR
829, 82 NCCA 204; Kenney v. Building
Comr. of Melrose, 815 Mass 291, 295,
52 NE2d 688, 150 ALR 490; Winship
v. Inspector of Bldgs. of Wakefield,
274 Mass 880, 174 NE 476; Kimball .c:·
v. Blanchard, 90 NH 298, 7 A2d 894;
Deutschmann v. Board of Appeals of
Canton, 825 Mass 297, 800, 90 NE2d
818; Bennett v. Inspector of Bldgs.
of Cambridge, 270 Mass 486, 170 NE
412.
Whether further evidence shall be
received upon a point expressly ad-
mitted by the adverse party is wholly
within ·the discr
Dorr v. Tremont
349, 360; Brown
290, 291, 94 NE .
In construing
not bound to an
shall give to wo1
era! dictionary (
Markham (CA2d
739.
Defendant's u1
were customarily
of nurseries an.
were therefore ·p
uses within the rt
the bylaws. Ben
Bldgs. of Cambr
170 NE 412; Kent
of Melrose, 815 M
150 ALR 490; Pet
& Inspector of I
28 NE2d 238, U
Nurseries, Inc. V.
974, 105 NYS2<l
Drive, Inc. v. Mt
550, 96 NYS2d SE
Casey, 218 Minn
155 ALR 1128'.;
Board of Adjufi1;1
241 SW2d 955,fI
Buffalo, 162 Milt
State ex rel. Szot
La 1068, 10 Soft
150 ALR 494. t.
Williams, J. l
This Is a bi
the use of ce
Needham for
in violation of
town. The evl
a judge of th "
reported findi ·,
By the by-la .~
was enacted fl\
town is divided.'.
districts desigi\li
dence, general re
al, business, arid
is provided tMt
districts (sectlo:
shall be erected)
no premises shi\1'.
one. or more ot.'
1. One-family, l!•
The taking of I>!
Ing of rooms by
8. Churches, scl;
!es, public muset
philanthropic in:
<!.NNOTATED 40ALR2d
m of community. People v.
(Sp Sess) 177 NYS 846, 847.
U. 0. Proctor, of Boston, as
-uriae:
proper for the court to define
:;; and greenhouses in the zon-
w In the light of the custom
~ of the business as generally
: at the time of its enact-
_orr v. Tremont Nat. Bank, 128
-:, 860; Brown v. Brown, 208
), 291, 94 NE 465; Cabell v.
• (CA2d NY) 148 F2d 737,
iliers Reservoir & Irrig. Co.
,.b, 887 US 755, 764, 93 L ed
;1, 69 S Ct 1274; Watson v.
p Jud Quebec 15 CS 268, 272;
• Los Angeles Pacific Co. 18
522, 123 P 618; Chicago &
Co. v. Public Serv. Com. of
185 Ind 678, 114 NE 414; J.
& Co. v. State, 123 Tenn 516,
;gs; 60 Am Jur, Statutes pp
§ 260; p 278, § 297; 11 NYU
638, 642 (1934), Textual In-
ion of Statutes i Higgins'
! Mass 845, 187 NE 692;
Beverly, 816 Mass 567, 669,
698, 161 ALR 787; Commis-
-Public Works v. Cities Serv-
'• 308 Mass 349, 860, 82 NE2d
•monwealth v. Welosky, 276
. 401, 402, 177 NE 656; Win-
'· & Smith Co. v. Hillsbor-
1•, 319 Mass 187, 141, 65 NE
~ara v. Luckenbach S. S. Co.
j4, 70 L ed 813, 46 S Ct 157;
·lston Mfg, Co. v. Board of
of Easthampton, 277 MaBR
i 78 NE 581; Carter v. Liquid
Pacific Corp. (CA9th Cal)
Lincoln v. Murphy, 814 Mass
• NE2d 458, 146 ALR 1196;
. Building Inspector of Mil-
-~ass 195, 198, 43 NE2d 662;
h v. Charter Oak Fire Ins.
•• (2 Allen) 681, 683; Wilson
•! Air Transport, Inc. 278
. 426, 180 NE 212, 83 ALR
'CA 204; Kenney v. Building
Melrose, 316 Mass 291, 296,
683, 160 ALR 490; Winship
-''" of Bldgs. of Wakefield,
880, 174 NE 476; Kimball
c•d, 90 NH 298, 7 A2d 894;
""" v. Board of Appeals of ;<~ Mass 297, 800, 90 NE2d
•ett v. Inspector of Bldgs.
dge, 270 Mass 436, 170 NE
further evidence shall be
•pon a point expressly ad-
the adverse party Is wholly
~
i l
?
i
' 1
• • NEEDHAM v. WINSLOW NURSERIES 1455
(180 Mass 95, 111 NE2d 461, 40 ALR2d 1460)
within · the discretion of the court.
Dorr v. Tremont Nat. Bank, 128 Mass
349, 360; Brown v. Brown, 208 Mass
290, 291, 94 NE 465.
In construing statutes, courts are
not bound to an interpretation which
shall give to words or phrases a lit-
eral dictionary definition. Cabell v.
Markham (CA2d NY) 148 F2d 737,
789.
Defendant's uses of the property
were customarily incident to the uses
of nurseries and greenhouses, and
were therefore permissible accessory
uses within the meaning and intent of
the bylaws. Bennett v. Inspector of
Bldgs. of Cambridge, 270 Mass 436,
170 NE 412; Kenney v. Building Comr.
of Melrose, 315 Mass 291, 52 NE2d 688,
150 ALR 490; Petros v. Superintendent
& Inspector of Bldgs. 806 Mass 868,
28 NE2d 288, 128 ALR 1210; A. C.
Nurseries, Inc. v. Brady, 278 App Div
974, 105 NYS2d 933; 140 Riverside
Drive, Inc. v. Murdock, 276 App Div
550, 95 NYS2d 860; St. Louis Park v.
Casey, 218 Minn 894, 16 NW2d 459,
155 ALR 1128; Thomas v. Zoning
Board of Adjustment (Tex Civ App)
241 SW2d 955; Buffalo Park Lane v.
Buffalo, 162 Misc 207, 294 NYS 413;
State ex rel. Szodomka v. Gruber, 201
La 1068, 10 So2d 899; annotation In
160 ALR 494.
Williams, J.
This Is a bill In equity to restrain
the use of certain described land In
Needham for purposes alleged to be
In violation of a zoning by-law of the
town. The evidence is reported and
a judge of the Superior Court has
reported findings of material facts.
By the by-law In question, which
was enacted in March, 1925, the
town Is divided Into five classes of
districts designated as single resi-
dence, general residence, Institution-
al, business, and manufacturing. It
Is provided that In single residence
districts (section 8) "no building
shall be erected, altered or used and
no premises shall be used except for
one or more of the following uses:
1. One-family, detached, houses. 2.
The taking of boarders or the leas-
ing of rooms by a resident family.
8. Churches, schools, public librar-
ies, public museums, parish houses,
philanthropic institutions. 4. Pri-
vate clubs not conducted as a
business. 5. Public parks, play-
grounds, municipal recreation build-
ings, water towers and reservoirs.
6. Farms, stock farms, greenhouses,
nurseries and truck gardens. 7. Real
estate signs advertising the sale or
rental of only the premises on which
they are located and bulletin boards
accessory to uses specified in 3 and
5 of this section. 8. Public service
and other passenger stations."
The land which is the subject of
the town's complaint consists of
three adjacent parcels of land, total-
ing approximately 176,000 square
feet, owned by the defendant Wins-
low. They, with three other parcels,
one of which is owned by him and
two by him and his wife as tenants
by the entirety, are occupied by the
other defendant, Winslow Nurseries,
Inc., as tenant at will and are used
by it for a greenhouse and nursery
business. Winslow is president of
this operating corporation. All six
parcels are in a single residence dis-
trict. On the first of the parcels
described in the bill there is a "sales
and growing" greenhouse to which
are attached a greenhouse workshop,
a storage building, a "garden shop,"
and an office. Near by there are a
second storage shed · and another
greenhouse with a wing and heating
plant. · The floor area of all of these
buildings ls about 10,245 square feet.
A new sales greenhouse 60 feet long
by 40 feet wide ls in process of con-
struction. The land not occupied
by the buildings on this parcel and
the second and third parcels, which
are separated from the first parcel
by a street, are used for growing
nursery stock. The defendants pro-
pose to construct on the second par-
cel a parking lot 260 feet long by 80
feet wide which will accommodate
sixty automobiles.
There are findings that Winslow
Nurseries, Inc., hereinafter referred
to as the defendant, carries on the
following activities upon the prem-
ises: "1. The growing of trees,
shrubs and plants. 2. The sale of
trees, shrubs and plants grown upon
. ,,
~i ·1
::: .. !
' -j ;cl
1456 AM.AN LAW REPORTS, ANNOTATED. 40ALR2d
said premises. 3. The storage and
sale of substantial quantities of
trees, shrubs and plants which are
grown elsewhere than on said prem-
ises but which are obtained for sale
on the premises. 4. The storage and
sale upon the premises during the
Christmas season of substantial
quantities of cut Christmas trees,
and of Christmas wreaths, grown
elsewhere than on the premises, and
brought in for sale • • • • 5.
Sale of peat moss, fertilizers, humus,
and mulches. 6. The business of
contracting to plant trees, shrubs,
plants and lawns for others, using
nursery stock both grown on the
premises and obtained elsewhere.
7. The maintenance of trucks, and
other mechanical equipment, includ-
ing both indoor and outdoor steam
earth sterilizers, for use in connec-
tion with the nursery business. 8.
Signs on or near defendants' princi-
pal place of business, advertising the
business carried on by the defendant
corporation and the sale of particu-
lar products or articles in season.
9. Signs located on outlying grow-
ing areas bearing the defendant cor-
poration's name and telephone num-
ber. 10. A small sales or garden
shop containing the following ar-
ticles • • • : a. Hose, sprin-
klers and nozzles. b. Fungicides,
insecticides and chemicals. c. Steri-
lized soil and soil conditioners
(lime). d. Fertilizers, liquid and
powder. e. Mowers, spreaders,
sweepers, and garden carts. f.
Sprayers and dusters. g. Tools
(stand up) including rakes, hoes and
shovels. h. Tools (hand) including
shears, pruners and trowels. i.
Books on the care of trees, plants
and shrubs. j. Wooden trellis, and
garden ornaments. k. Labels,
stakes and guides. I. Pottery (out-
door garden and greenhouse). m.
Pottery, decorative. n. Bird hous-
es, bird baths, bird feeders and bird
seeds. o. Christmas candles and
decorations, nonfloral. p. Flower,
vegetable and grass seeds. q. Cold
frames." In addition to the green-
houses, the garden shop, the soil
sterilizer and the signs, it maintains
on the premises flood lights and a
loud speaker intercommunicating
system.
The extent of the defendant's
business is reflected in its gross re-
ceipts, which in the fiscal year end-
ing in February, 1952, totaled $419,-
738.37. Of this sum more than half
represented sales on the premises,
and the balance receipts from con-
tract work on landscaping and hous-
ing projects. During the last two
fiscal years approximately 40 % of
the defendant's gross sales consisted
of trees, shrubs, and vines. Of such
sales 40% to 50% were of plants not
grown on the premises. In the same
years sales of greenhouse plants
constituted 8.5% and 5.9% of gross
sales, and sales of fertilizers, roses,
bulbs, and grass seed from 3 % to
5% of gross sales. "Substantially
all of these [last named] articles
• • • were brought in from outside. ,
Perennials, annuals and vegetable ; '.
plantsh • • • were, nearly f!ll raised .~. ;. ·.·
on t e premises. ' Durmg the
months of April, May, and Decem-
ber "as many as 400 to 600 retail
sales are made on the premises on
peak days," resulting in "a large
amount of automobile traffic." '
The plaintiff contends that, excepfJ'
for the cultivation and sale of tree~'·.·
shrubs and plants grown on ·th"··
premises, the activities of the de{;:,
fendant violate the zoning by-law.:·:,
Whether this is so depends on the . ·
nature of the business which is per-·
mitted by the by-law under the des-
ignations "greenhouses" and "nur-
series." As bearing on the meaning ·
of these words, the judge, subject;·.
to the plaintiff's exceptions, admit. ...
ted evidence of the customary scope'
of the greenhouse and nursery busi~;
ness as actually carried on in 1925 ,
when the by-law was enacted In his• ..
findings he states, "If the wordli:
'nurseries' and 'greenhouses' in the·.
zoning by-law may, as a matter of
law, be defined in the light of the
custom and usage of the business as·
generally practised at the time ol.
its enactment, I find that the defend-
ant has co:
in the tern
He orde
cree to be
of a "loud
tion syster
focused b
premises,,·,
unsightlyjz
of whichf/
conduct of
tute an ann
He furthei
so stated, flt
adjudicat!Ji
not, and n,e
tion oft~· the furth
them be ~
that this!' of the con··
ought, be ·
to bede~
report the;
upon the _I'
findings ofp
for decree,p
ceedings ~
tory deer
stipulation i
the par!Qn
force and
sion of thr,
Greenlio
words·tn;'
Head~~~~ '-ij1~
in other th
They areto
to the com ·,
of the laniJ
ment or i wealth v. S. ·
145, 148, 1
Building . I~ Mass 195, 1 .
li~4Dote 1 ' q
~· Elevated Ral.
411, 100 NE~
tick v. Bos 1
1. The 1tlp1
the record. -1;·
[40ALR2 I·
'i'ATED 40ALR2d
:.he signs, it maintains
'es flood lights and a
intercommunicating ._, __ ,;:-
of the defendant's •: ~i.•
fleeted in its gross re-
in the fiscal year end-
y, 1952, totaled $419," .
is sum more than half
~!es on the premises,
.ce receipts from eon«
landscaping and hous-
During the last two
pproximately 40 % of
's gross sales consisted
•S, and vines. Of such ;o % were of plants not
··remises. In the same
;f greenhouse plants ·.' ·
:: % and 5.9 ro of gross " .•
;s of fertilizers, roses,
o.ss seed from 8 % to
sales. "Substantially
[last named] articles
ought in from outside. ~ .
nnuals and vegetable 1,
.were,,nearly 1\11 raise~-. ~j·.·. ulses. Dunng the -t"
•ril, May, and Deceni"·'-·il;:;
; as 400 to 60~ retail , . f~;
•e on the premises Ol\Of '\.
resulting in "a Jargl!;,.:
:omoblle traffic." ;·;ti';;·
' contends that, exce.t!
··tlon and sale of tif .
ulants grown on· ;·t
activities of the ,d~;
te the zoning by-lawi;'.,
Is so depends on .th
business which is pel'":!';
•by-law under the de&<
eenhouses" and · "nur~.'
:lllring on the mean1nr; '.
:Jg, the judge, subJe<:ti .. 5
fl''s exceptions, adm(t;.j\'t,
.f the customary scoJ>Or
~use and nursery btis!;t•
nv carried on ln•l!I e.w was enacted In h!ij'I·
,tates, "If the wor . ·
d 'greenhouses' In ·th .
· may, as a matter Qft::
x! In the light of· ther;,
.age of the business· at1r.
'ltlsed at the time .oft:.
. I find that the defend•r •
-.,·,-:.
; ..... 't.-
1"''
i
-i
1
'
.
• • NEEDHAM v. WINSLOW NURSERIES 1457
(130 Mass 95, 111 NE2d f61, 40 ALR2d 1460)
ant has conducted its business with-
in the terms of the by-law."
He ordered an interlocutory de-
cree to be entered enjoining the use
of a "loud speaker intercommunica-
tion system,'' the use of floodlights
focused beyond the defendant's
premises, and the maintenance of
unsightly rubbish accumulations, all
of which "are unnecessary to the
conduct of the business and consti-
tute an annoyance to the neighbors."
He further ordered that, "except as
so stated, a decree shall be entered,
adjudicating that the defendants are
not, and neither of them is in viola-
tion of the zoning by-Jaw, and that
the further relief prayed for against
them be denied." Being of opinion
that this order so affects the merits
of the controversy that the matter
ought, before further proceedings,
to be determined by the full court, I
report the case for that purpose,
upon the pleadings, evidence and
findings of material facts and order
for decree, and stay all further pro-
ceedings except under the interlocu-
tory decree, and except that the
stipulation relating to the use of
the parking lot shall remain in full
force and effect, pending the deci-
sion of the full court."1
Greenhouse and nursery are
words in common use and there is
nothing in the by-Jaw to
Headnote 1 indicate that it was in-
tended to employ them
in other than their ordinary sense.
They are to be interpreted according
to the common and approved usage
of the language without enlarge-
ment or restriction. Common-
wealth v. S. S. Kresge Co., 267 Mass
145, 148, 166 NE 558; Moulton v.
Building Inspector of Milton, 812
Mass 195, 198, 48 NE2d 662. Their
respective meanings are
Headnote 2 questions of law for the
court. Boston v. Boston
Elevated Railway, 218 Mass 407,
411, 100 NE 601. Selectmen of Na-
tick v. Boston & Albany Railroad,
1. The stipulation is not contained in
the record.
[ 40 ALR2d)-92
210 Mass 229, 232, 96 NE 847. The
word greenhouse was re-
Ileadnote 3 cently construed by us
in Kenney v. Building
Commissioner of Melrose, 315 Mass
291, 52 NE2d 683, 150 ALR 490. It
refers to a building principally con-
structed of glass wherein plants
flowers, and sometimes vegetable~
are raised for purposes of sale. The
greenhouse business involves the
cultivation of these or similar prod-
ucts of the soil and the disposal of
them to purchasers. The by-law
distinguishes the business of a
greenhouse from that of a florist
which is permitted in a business
district presumably on the ground
that sales from a greenhouse ordi-
narily are of the produce of the
premises.
According to dictionary definition
a nursery is a place where trees,
shrubs, plants, and so
Headnote t forth, are propagated
from seed or otherwise
for transplanting, for use as stock
for grafting, and for sale. See
Miethke v. Pierce County, 178 Wash
381, 23 P2d 405; Attorney General
v. State Board of Judges, 88 Cal 291,
296; Miller v. Baker, 1 Mete 27;
Whitmarsh v. Walker, 1 Mete 818;
Paine v. Board of Assessors of Town
of Weston, 297 Mass 178, 7 NE2d
584. It is essentially a tree planta-.
tion or, as suggested in Kenney v.
Building Commissioner of Melrose,
815 Mass 291, at page 295, 52 NE2d
688, a "tree farm." In subsection 6
of section 3 of the by-law the word
nurseries appears in conjunction
with the words farms, stock farms,
greenhouses, and truck gardens, all
common terms referring to various
uses of land for agricultural purpos-
es. Extrinsic evidence to ascertain
its meaning is no more required than
is evidence respecting the meaning
of greenhouse, see the Kenney case,
or of farms, see Winship v. Inspector
of Buildings of Town of Wakefield,
274 Mass 880, 174 NE 476; Moulton
v. Building Inspector of Milton, 812
Mass 195, 43 NE2d 662; Town of
.,
'
i
1458 AMERI. LAW REPORTS, ANNOTATED .
'
Lincoln v. Murphy, 314 Mass 16, 49
NE2d 453, 146 ALR 1196; Deutsch-
mann v. Board of Appeals of Canton,
325 Mass 297, 90 NE2d 313. We
may add that the admitted evidence
did not in our opinion show that the
term nursery had acquired, except
possibly in the trade, any generally
accepted secondary meaning.
We proceed to consider in what
respects, if any, the defendant is en-
gaged in activities outside of those
clearly permitted by the by-law or
inferentially permitted as reason-
ably incident to the business of a
greenhouse and of a nursery as here-
tofore defined. As the general con-
clusion of the judge was
Headnote I founded on what we be-
lieve to have been an
erroneous conception of the meaning
to be attached to the words in dis-
pute it must, although largely based
upon oral testimony, be disregarded.
An incidental or accessory use
under a zoning law is a use which Is
dependent on or pertains
Headnote • to the principal or main
use. Accessory uses are
impliedly recognized by the by-law.
Section 2, subsection e, provides
that "An accessory use or building Is
a use or building customarily inci-
dent to and located on the same lot
with another use or building," and
·section 12 that "Accessory. uses
shalt be on the same lot with the
building of the owner or lessee, and
shall be such as do not alter the
character of the premises on which
they are located nor impair the
neighborhood."
A substantial part of the defend-
ant's business is the sale of plants
(by which . term we in-
neaanote 7 elude trees, shrubs, and
vines) which are not
grown on the premises. As much
of the stock for which there is a
demand can be grown in this climate
only at certain seasons, it is custom-
ary for the defendant purchase
plants in parts of the country where
they can be grown, to store them on
its premises, and to resell them for
transplanting in season. Some o1
the plants so purchased are tem-
porarily planted or potted under
glass, others are stored in ventilated
buildings and kept "dormant." They
remain alive but do not grow. We
have no doubt that plants purchased
elsewhere and transplanted into the
soil of the nursery thereafter become
the product of the nursery. We also
think plants acquired and treated on
the premises so that they continue
to hve are fundamentally in the
same category. They are, in kind
stock which a nursery may raise and
sell and their treatment seems only
to differ in degree from that af-
forded by an actual transplanting.
We find in these Instances no viola-
tion of the by-law. The sale of
Christmas trees and
Headnote I wreaths presents a dif-
ferent question. Neither
the trees nor the materials for the
wreaths are raised in the nursery.
Their sale is not of living plants
but of dead wood. Transactions In
these articles are no part of the nur-
sery or greenhouse business and are
not incidental thereto.
..
.
' ' . . . _,...
The defendant maintains a shop
called a "garden shop" where it
sells the various articles
Headnote • mentioned in the judge's
findings, including many .; .,~' · ·. ·1 :~~e!~d 1r~~~~sq~1~~rentt!~rltthl4'.s · ... l~.l.~J·
conducting a retail store which un-· '.f'}'fl ··
der the by-law is only permissible ~;'f:/
In a business district (see section 6,
subsection 1). It is also selling ar-
ticles which are not incidents of the
products of a greenhouse or of a :" ·
nursery. It is thereby violating the
by-law. Although denied the right , , . l
to maintain a store, we think that i
the defendant Is not precluded from t ' · 'J'
selling to customers in connection . .•.t. ..
with Its sale of plants such fungi-~"''
cides, insecticides, chemicals, peat .:fi?;~
moss, humus, mulches, and fertili-
zers as are intended to be used in
preserving the life and health of the
plants sold.
A substantial part of its business
(40 ALR2d)
ls the landscapi
and
Headnote 10 coil:
ent.
provides trees
tends to the!J
seven or more 1
times as many
work. Man;Y..
come to the nu1
planted mater
where and g0e
The trucks ari
ant's premls~.
the business oJ
carried on only
(see section 6t
less the def~
landscaping Ill!
and prepara~~
planting oi,, ~
it intends -~• It may ente 1
work. Wet 1
ises cannot lie
for a contrjµ
does not coil
ing of the ·19
sery stock <{!::.
physically ·
sery. Sue
reasonably
business, as
on the pre
are necessa
ownprodu
The us11'·
.-.!<!~
Headnote 1~-_ 1·:
acceseory u
Perm
This anno
tlon of what
erty arepe
authorizing •.
+Cili
'
"'t
-~ ..
~::~:·::~I
,:> purchased are tern-:.; .. ~. >. !.
nted or potted under 'ff(': ·.
are stored in ventilated ~·"·" .-
: kept "dormant." They {',t~: ~
but do not grow. We ,.,.,, .:
.t that plants purchased Ji}:;, ..
d transplanted into the ·t(.n
··sery thereafter become 01.'::o" .
·f the nursery. We also ·fi .. :;,!'
acquired and treated on ·v-,;;-·
so that they continue · 0·
fundamentally in the :: f,
y. They are, in kind, ':·.,/' i
, nursery may raise and -'" I di:;:::~~~:iee:h!to~[. ;~\· 1
, actual transplanting. .~· ., j
.ese instances no viola-.'1[~
by-law. The sale of -!:1:6 J
hristmas trees and .'f'.:.. '
reaths presents a dif-f·' ( ''~~! ~:i;~~is ~::t~~ ~ : l
raised in the nursery. •::o.<c I
, not of living plants ,;.:
wuod. Transactions in . "{r
are no part of the nur~ · ·;,:
house business and are · ~·
I thereto. :. ·~,~'
:,.nt maintains a shop'>'.
•rden shop" where . I~.::
,lJ., the various articles:·
·~ntloned In the judge~
•dings, including man
•ch equipment for t1f ·
-:~ems clear that it ,,
retail store which un• ·.
·w is only permissible ·
district (see section 6, /
. It is also selling ar: ': .
. re not incidents of the : a greenhouse or of a',,
• thereby violating the"'''
.ough denied the right '.'
-store, we think that··
: Is not precluded from "';
•tomers In connectloiF,
of plants such fungi-;•'
oldes, chemicals, peat•
, mulches, and fertlll;,1 .
ntended to be used hi :·
e life and health of the :
;,.1 part of its buslnes~ '::
(40 ALR2d]
• • NEEDHAM v. WINSLOW NURSERIES 1459
(330 MaBS 95, 111 NE2d 461, 40 ALR2d 1450)
Is the landscaping of private estates sterilized soil is subject to the re-
and housing projects. In strictions which apply to the sale of
Headnote 10 connection therewith it fertilizers and chemicals.
enters into contracts, The five advertising signs, several
provides trees and shrubs, and at-of substantial size, are maintained
tends to their planting. It uses in violation of section 3,
seven or more trucks and employs at Headnote 1z subsection 7, of the by-
times as many as sixty men on this law which impliedly
work. Many of these men never limits signs in a single residence
come to the nursery and much of the district to those which ari; therein
planted material is obtained else-specified. See Town of Lexmgton v.
where and goes directly to the job. Govenar, 295 Mass 31, 3 NE2d 19.
The trucks are kept on the defend-There is no mention in the by-law
ant's premises. The by-law permits of parking lots or areas. a~though
the business of a "contractor" to be there are restrictions re-
carried on only in a business district Headnote 11 specting garages and
(see section 6 subsection 6). Doubt-filling stations. The de-
less the defe'ndant may engage in fendant may, we think, provide rea-
landscaping as a part of the planning sonable space on its prem!ses where
and preparation of the land for the customers may leave their automo-
planting of. trees and shrubs which biles while transacting business with
it intends to sell from its nursery. the defendant. Whether such use
It may enter into contracts for such will be of such nature or extent that
work We think, however, its prem-it will impair the residential charac-
ises ~nnot be used as headquarters ter of the neighborhood cannot now
for a contracting business which be determined.
does not concern the transplant-The order of the Superior Court is
Ing of the defendant's own nur-reversed. A final decree is to be en-
sery stock or the stock which has ter~ enjoi!1i~g both defe.nd!lnts, see
physically become a part of the nur-Pubhc Buildmgs Comm1ss1oner of
sery. Such use exceeds what is Newton v. Star Market Co., 8~4
reasonably accessory to its principal Mass 75, 79, 84 NE2d 529, from v10-
business as does the maintenance lating the by-law in the manner
on the p~emises of more trucks than hereinbefore indicated and in the
are necessary for the delivery of its manner stated in the interlocutory
own products. decree. The plaintiff is entitled to
The use of the soil sterilization the costs of appeal.
pll!nt, If limited to im-So ordered.
Headnole 11 proving the soil of the
nursery, is a permissible
acceaeory use. The right to sell the
ANNOTATION
Permissible activities under zoning laws permitting greenhouses
and nurseries
[See ALR Digests, Zoning § 18.]
This annotation discusses the ques· tfon of "greenhouses" or "nurseries."
tlon of what activities or uses of prop-Since the fundamental meaning of
erty are permissible under zoning laws these terms Is clear, the question In
authorizing the construction or opera-controversy Is usually what accessory
+Consult ALIUd SUPPLEMENT SERVICE for subsequent cases+
.,
• • .·
1460 AMERICAN LAW REPORTS, ANNOTATED 40ALR2d > I .• ~;·"''' '. or collateral uses related to the opera-ing the soil of the nursery, was held
tion of a greenhouse or nursery are permissible, as was the right to sell
permissible under the express or im-such sterilized soil for use with plants
plied terms of the law.1 grown in or sold from the defendant•8
Stating that the terms "greenhouse" premises. Use of large advertising
and "nursery" were words in common signs was heJd to be in violation of
use and should be interpreted accord-a specific provision of the ordinance
ing to the common and approved usage limiting signs to certain specified
of the language without enlargement types. And it was held that the de-
or restriction, and that their respec.. fendant was entitled to provide reason ..
tive meanings were questions of law, able space on his premises where cus-
the court in Needham v. Winslow tomers might park their automobiles
Nurseries, Inc. (1953) 330 Mass 95, while transacting business with the
111 NE2d 453, 40 ALR2d 1450, held defendant, so long as such use did not
that the defendant greenhouse and impair the residential character of the
'
~'·Jr·· '; ~i.. : ... :... .. ,
nursery business was justified, as an neighborhood, .. ·-·.
authorized "accessory use" to its See also People v. Perkins (1940) c c'
greenhouse business, to store and sell 282 NY 329, 26 NE2d 278, where, un' ; ·.•
plants not actually grown on the prem-der a zoning ordinance permitting the
lses (but of a type which were grown continuation of nonconforming uses in
there In season), which were tempo-existence at the time of the adoption
rarily planted or stored on the prem-of the ordinance, the court held that
lees and sold in a live condition, but one who operated a greenhouse and
that there was no justification for the engaged in the business of selling
sale of Christmas trees and wreaths plants and flowers, fruits and vegeta ..
not grown on the premises, since this bles grown on the premises and pur--
activity involved the sale not of living chased for resale, was not guilty of ">~ ·
plants but of dead wood. The main-viol!' ting the ordinance although his . ·~' .. • ·
tenance of a small retail garden shop business had increased in volume, he , .'R.''
where tools and gardening equipment had added the sale of some noveltleil '. ·' :>
were sold was also held to be a viola-consisting of pottery and wooden lawn . .;: '· '\'.: ,,
tion of the ordinance, although the o•naments, and had extended his oper-· ·' :· ·
court said that the defendant was not ations to another lot adjacent to that0 .. :
precluded froin selling, in connection on which the business hail previousl:i';f
with its sale of plants, such fungicides, been operated. 1/~f
insecticides, chemicals, peat moss, And in A. C. Nurseries, Inc. v. Bradt
humus, mulches, and fertilizers as (1951) 278 App Div 974, 105 NYS2 =
were intended to be used in preserving 933, the court, without directly so hoJd.i;'.,
the life and health of the plants sold. Ing, apparently took the view that use' •
The operation of an extensive land-of a building for the purpose of con~
scape contracting business was held ducting a retsil ftorist business, an
a violation of the ordinance, although office, and for PUl'.JlOSes of storage In
it was said that the defendant was connection with the nursery, were per-
entitled to engage in landscaping as missible uses accessory to the prinei-
a part of the planning and prepara-pal use as a nursery.
tion of the land for the planting of +
trees and shrubs which It intended to See Call Bond & Mortg. Co. v. Sioux
sell from its nursery, as distinguished City (1935) 219 Iowa 572, 259 NW
from planted material obtained else-38, where the court considered a zon"t~
where and sent directly to the premises Ing ordinance providing that no build-·
to be landscaped. The use of a soil lngs within a residence district could
sterilization plant, limited to improv-be used except for speelfied purposes,
·---,~~---,~-,~~~~~~~~~~~~~~~~~
1. Generally as to the construction There is an annotation in 146 ALR
and application of a provision of a 1201, on the subject of "Construction
zoning ordinance which permits use n.nd application of ternis 'farm.' 'farm·
for accessory or incidental purposes, ing,' or the like in zoning regulations."
see the annotation in 150 ALR 494.
;.
A1
one of which wa
houses, and (u
separate paragi
marily incidell,ll
uses" when l~c
"not involvlns:;·
ness on the pre
miesible. T!ie
that the lani1!1
conduct of a bll.1
restricted· thi,,.
of use for nlft't
to those use~
private h:c:t
' .f'
I
·(i,
•> r ,,
"
\
~
' _\
•TATED · • 40 ALR~ : .• ;. -· •. . . , .·.,,.; .
' • • I ~ll" the nursery, was held :· · !
· was the right to sell : ~ .· !
soil for use with plants ·,
Id from the defendant's
o of large advertising
~ to be In violation of ·i
·talon of the ordinance ,
. to certain specified: 1 .
was held that the de-··.; ,. "
titled to provide reason~.·~'.~
f~ premises where cus· ..
park their automobile~
'"g business with the
ong as such use did not
dential character of the
ople v. Perkins (1940) 1'
; NE2d 278, where, un' I
dinance permitting the , ..
-nonconforming uses in '; -_ .
•e time of the adoption
ce, the court held that ·
-ted a greenhouse and
•e business of selling .L
.-ere, fruits and vegeta;-·-~·_:-~
the premises and pur-:1 >
de, was not guilty of ·1· · ...
·rdinance although his_! ~-.•.
ncreased fn volume, he:.: , -~·~
sale of some noveltiei:·i'. 1
__ ..
;ttery and wooden lawq~
had extended his opei'I<
.er lot adjacent to th&.: ·
•uiln&ss had preVlo~· ,.,
Nurseries, Inc. v;·B~a
p Div 974, 105 NYS:i
·· l<hout directly so iiol!l·
took the view that ilii,~
or the purpose of con~.
:II florist business, "aft(
pu1:poses of storage,~'\:/
! the nursery, were p~:
ocessory to the princf ·
•rsery. _,,_{-.~.
+ ~
! & Mortg. Co. v. Sio~x"i"
'9 Iowa 672, 25!L .•
~vurt considered a ZOil,•,.. ._
•!"uvlding that no build "' ·
.;sldence district could··
for specified purposea,ir ..
= nnotatlon In 146 AL\t;
hject of "Constructl~Jj··
of terms 'farm,' 'farm4':.:· :
In zoning regulations.~?;.
I
' ' I
1
l
• • ANNO: ZONING-GREENHOUSES-NURSERIES 1461
one of which was nurseries and green-rnercial greenhouse. However, the
houses, and further providing in a court said, arguendo, that this con-
separate paragraph that uses custo-struction was doubtful, and that the
mariiy incidental to any of "the above language referred to dealt with uses
uses" when located on the same lot customary and incidental to the uses
"not involving the conduct of a busi-already granted, among such uses
ness on the premises," were also per-being nurseries and greenhouses, the
missibJe. The contention was made effect of the provision being to author-
that the language 0 not involving the ize additional uses customarily inci-
conduct of a business on the premises," dental to uses of nurseries and green-
restricted the previous authorization houses, and barring any additional
of use for nurseries and greenhouses uses that involved the conduct of a
to those used in connection with a business on the premises.
private home so as to exclude a com-J. Pascucci.
+Consult ALR2d SUPPLEMENT SERVICE for subsequent cases+
END OF VOLUME
"Oi!.TER, 2d SERIES
:.int,.-f'1dgment was soufht.
~!intiff principal and th"eda
~turday v. Saturday, .. 224-
~! S.E.2d 509, -and cit. -;(
[SJ ~oreover, even
~rr1plaint could be construed
ability for acts done indc ~\
:ency, neverthel~ss it ~ii):;
!~intained, since the co~~··l ,
iction of the nonresident>~ r-
~!,dant and 11 there is no so~P'_
·wing a third-party __ clai,.r;tJi ·.
,;ginal action of which,~~
:;t have jurisdiction othe ·
:;!ia of Federal Proced\\t~'
!rron & Holtzoff, Federal,.
''\ [6, 7] Since the third,,ii_~
:'C<ssarily adjudicated ag~an ... rr~ ;;; as a matter of law,.~.[,'
·:ainst them in the -~~a~'1
il.i not necessary eithCr :,~
ude in said judgment ~~ti
''dant by name or to· -~
i~rmination therein whi'
:1e Ann. § 81A-154(b)<
l'J, 658) for situations wh
I of the claims presented
nder the facts and c
1.;inabovc stated, ·the -i '
held to have been negh
•r.test the third-party'n ..
iled to state a claim aga_
'.~-•~ant
:.lity.
Judgment reversed.
All the Justices
• ANJ)ERSON v. HUMllLll OIL & .INING OOMPANY Ga. 415
Cite a117f S.E.2d 4U5
226 Ga. 284
Margie Annette JACOBS
••
Claude Julian SHIVER.
No. 25713.
supreme Court ot Georgia.
April 9, 11}70,
APpeal was made from the Superior
. Colquitt County, Marcus B. Calhoun,
'""''· . J h ld The Supreme Court, Grice, ., e
J ·here record was not transmitted with-111..0" . • • 20 days after fahng of notice of appeal
di se of appellant's failure to pay costs
l«IU , h d' •pPC•I would be dismissed, notw1t stan 1~g
i068 amendment to the Appellate Practice
. \<1 of 1965.
Appeal dismissed.
,,,,.1 and Error 4:>627(2)
Where record was not transmitted to
.. Supreme Court within 20 days after
lolinf of notice of appeal because of ap-
f<llant's failure to pay costs, appeal would
It dismissed, notwithstanding 1968 amend-
-! to the Appellate Practice Act of 1965.
Ctd<, §§ 6-808, 6-809.
G. Gerald Kunes, Tifton, for appellant.
Billy G. Fallin, Moultrie, for appellee.
Syllabus Opinion by the Court
GRICE, Justice.
The Appellate Practice Act (Ga.L.1966,
Ir-493, 497; Code Ann. § tHlOS) requires
flit where no transcript of evidence and
lloctcdings is to be sent up, the clerk
"II prepare and transmit the record within
i days after the date of filing of the
'Mice of appeal.
Although there was no transeript of evi-
ta.ce and proceedings to be sent up in this
~. the record was not transmitted within
20 days after the filing of the notice of
appeal. The clerk's certificate states:
11 This is to certify that due to the fact
of the appe11ant not having paid the costs
of this court caused a delay in transmitting
this record to the Supreme Court • • •"
Therefore, under the rule laid down by
George v. American Credit Control, Inc.,
222 Ga. 512, ISO S.E.2d 683; Vezzani v.
Vezzani, 222 Ga. 853, 153 S.E.2d 161;
Mutual Fed. Savings & Loan Assn. v.
Johnson, 223 Ga. 811, 158 S.E.2d 762;
Pippins v. Securities Investment Co., 223
Ga. 812, 158 S.E.2d 675; U-Haul Company
v. A Trailer & Truck Rentals, 225 Ga. 195,
167 S.E.2d 135; Kilgo v. Cochran, 225
Ga. 477, 169 S.E2d 818, this appeal must
be dismissed .
The 1968 amendment to the Appellate
Practice Act (Ga.L.1968, pp. 1072, 1073-
1074; Code Ann. § 6-809) does not change
this rule. See Fahrig v. Garrett, 224 Ga.
817, 165 S.E.2d 126.
Appeal dismissed.
All the Justices concur.
226 Ga. 21!2
w. s. ANDERSON et al .
••
HUMBLE OIL & REFINING COMPANY.
No. 25665.
Supreme Court ot Georgia.
April 9, 1970.
Action to enjoin lessee from using land
for service station. The Superior Court,
DeKalb County, Hubert C. Morgan, J.,
dismissed complaint and appeal was taken.
The Supreme Court, Mobley, P. J., held
that evidence, including fact that owner of
tract had been buying large quaptities of
~1
'I
I
I
I
1.
•
416 Ga . i&uTH EASTERN REPORTER, 2d SERI.
nursery plants and reselling them on the
premises, supported finding that land was
being used for commercial purposes at
time of adoption of zoning regulations
providing that all land was to be zoned for
purpose for which it was being used at that
time.
Affirmed.
1. Zoning C;>279
Growing of nursery plants is 11 farrning"
and therefore land used for such purposes
would be classified as "agricultural" under
zoning ordinance.
See publication Words and Phrases
for other judicial constructions and
definitions.
2. Zoning <8=>680
In action to COJ01n landowner from
erecting a service station on land leased to
defendant, on basis that land had been used
for agricultural purposes at time of adop-
tion of zoning regulations providing that all
of land was to be zoned for purpose for
which it was being use\! at that time, burden
was on plaintiffs to show that at time
regulations became effective the land was
being used. for agricultural purposes.
3. Zonlng-7
Evidence, including fact that owner of
tract had been buying large quantities of
nursery plants and reselling them on the
premises, supported finding that land was
being used for commercial purposes at time
of adoption of zoning regulations providing
that all land was to be zoned for purpose
for which it was being used at that time,
in proceeding to enjoin lessee of land from
using property for a service station on
ground it had been used for agricultural
purposes when regulation• were adopted.
SyllabtU by lhe Court
The evidence supports the finding of
the trial court that the land in question was
being used for commercial purposes at the
time of the adoption of the zoning resolu-
tion, and accordingly the court d:
in denying the plaintiffs' prayC
injunction enjoining the def en··
erecting a service station ther
Archer, Patrick & Sidener,
Archer, Jr., East Point, for appclla
Jones, Bird & Howell, Earle B:
Atlanta, for appellee. · ••
MOBLEY, Presiding Justice.
'~ The issue in this case is whether
of land leased to the defendant ' " used by the owner for agricultura
at the time a zoning resolutiori w ~
by the Board of Commissioners~·
and Revenues of Fayette Countyn
The appeal is from a j udgm
the plaintiffs' prayer for a temp(>
permanent injunction against th
ant using the property for a serv1
or commercial purposes, and dis~
complaint: The entering of tha
is· enumerated as error. '";;.
" . •-!I
On August 13, 1960, the Boa
missioners of Roads and ,,.t(-'
Fayette County adopted zoning'
for the unincorporated area ,•iJ
County, providing that all of th'
that area was zoned for the pll
which it was being used at thaf
plaintiffs contend that the ten a:
being used for agricultural pu'
the time, and the defendant that;.
being used for commercial purpos · ,•
Counsel for the plaintiffs admi
property, consisting of ~Cn acr~
used by the owner for a <f
nursery where he raised variO
trees, flowers, etc. for sale prj
other nurseries and florists." ~ , '
Black's Law Dictionary (4th),
337, defines 11commercial" as, "R·.
or connected with trade &Rf! :I·
commerce in general. • •. •
with commerce • • • ;"
-crce" as, 11 The exct ··tofll••·
I ,ctions, or property
Prot l • • • • Commerce, tn 1ts su • • means an exchange of
11nll, II' d buying, se 1ng, an
ihc • • • " Webst articles
. nal Dictionary, P·
11.t!IO h
Sery " as 1'an area w e "1111r !ants are grown for tr 11r P • s stocks for budding · "'C' a
for sale."
..111 Bouvier's Law Dicti
la ted that agriculture in " . . the cultivation of the
" f .
1,urpose of procuring rutt
fur the use of man and be:
of preparing the soil, sow:
u·cds, dressing the plantf
<rops. In this sense tht
~.1.rdening or horticulture,
nr feeding of cattle and 01
irrn1 'agriculture' is at I<
ihat of 'farming,' even if
,11me courts have said.
Phrases, Perm.Ed. p. 46."
1'18 Ga. 18, 23, 30 S.E.2d 8
[I] The growing of . •
farming, and land used ,I
would be classified as •1
1he zoning ordinance of:
missioners. Howev~r, ~J
1n\•olves not only the gr<
plants, but the sale th«
the sale of others bought
1hc use of the propert)
within the meaning of
"Agricultural?"
(2, 3] The burden of p
11laintiffs to show that
r:oning resolution became
was being used fo.r agri•
There was evidence tha
irowing plants on the I
also buying large quan
products from other nu1
and in landscaping.' He a
of shrubs and plants, witl
whether they were grow
were bought from othe1
174 S.E.26-2,7
iit_' ·.
~:
~'
RBPORTER, 2d SERIES
tion, and accordingly the court
in~dcnying the plaintiffs' pr
injunction enjoining the defC
erecting a service station th;
Archer, Patrick & Sidener· •• Archer, Jr., East Point, for ap
Jones, Bird & Howell, Earle
Atlanta, for appellec.
MOBLEY, Presiding
The issue in this case is whc''
of land leased to the defcnda!\!
used by the owner for agricult ·· ·
at the time a zoning resolutiorl
by the Board of Commissione
and Revenues of Fayette Cou~
The appeal is from a judgn{-
the plaintiffs' prayer for a teift-
-:imancnt injunction againsf..,_
~t using the property for a''rie
··r commercial purposes, and ~i
".•mplaint; The entering of .i'
! enumerated as error. ·'.J;-
=~ . 1
On August 13, 1960, the ll""
!i!-!!o~ers · of Roads ancf'.' ' _,()
·ayette County adopted .to ,~
~r the unincorporated ar" ,
-Ounty, providing that all ·c)f.
·•t area was zoned for the•;
·:1ich it was being used at th -
~intiffs contend. th~t the •!ii:
. ;ng used for agricultural 'p
' time, and the defendant !1i4'
;ng used for commercial pu · ,.,·
Counsel for the plaintiffs'«"
uperty, consisting of ten ac"'•
;d by the owner for. :~ '.
rscry where he raised V!
;:.;;, flowers, etc. for salf .
•er nurseries and florist~ ·
-iack'a Law Dictionary (.t'
·, defines 0 commercia1" ·as:
connected with trade~
-rnerce in general. •
h commerce • •
SMITH v. ST.ER
Cite aa 17f 8.E.2d 417
Ga. 417
erce 11 as, "The exchange of goods,
....,mm f k" d
1 ctions, or property o any 1n ~ ll• Commerce, in its simplest significa~ • means an exchange of goods: • • •
'"'"' 11· d h . f h<' buying, se 1ng, an exc ang1ng o 1 . lrs • • •" Webster's (3d) Inter· ,r11c . .
'lat Dictionary, p. 1551, defines
""110
••ry" as "an area where trees, shrubs, '"1111r ~ •
laots are grown for transplanting, for
"' pas stocks for budding and grafting, or
u•t'
for i;alc."
"In Bouvier's Law Dictionary (1928), it
11
dated that agriculture in a general sense
•
1
, the cultivation of the ground for the
porpose of procuring fruits and vegetables
fur the use of man and beast; or, the act
.,f preparing the soil, sowing and planting
l("eds, dressing the plants, and removing
crops. In this sense the word includes
t.trdcning or horticulture, and the raising
.,, (ceding of cattle and other stock.' The
ttrn1 'agriculture' is at least as broad as
ihat of 'farming,' even if not broader, as
"""c courts have said. 3 Words and
l'hrases, Perm.Ed. p. 46." Collins v. Mills,
1'18 Ga. 18, 23, 30 S.E.2d 866, 869.
(I] The growing of nursery plants is
(arming, and land used for such purpose
would be classified as agricultural under
the zoning ordinance of the county com-
missioners. However, where the business
1n\'olves not only the growing of nursery
plants, but the sale thereof, as well as
•h• sale of others bQught for resale, would
1hc use of the property be agricultural
•·ithin the meaning o.f the zoning as
-Agricultural?"
[2, 3] The burden of proof was upon the
plaintiffs to show that at the time the
toning resolution became effective the land
"' being used for agricultural purposes.
There was evidence that the owner was
crowing plants on the property, btit was
tlso buying large quantities of nursery
products from olhcr nurseries for resale
tnd in landscaping." He advertised an array
•I •hrubs and plants, with no showing as to
-h•ther they were grown on the ·place or
were bought from other nurseries.
114 S.E.Zd-2,7
The selling of plants grown upon the
place would not, in and of itself, require a
finding that the property was being used for
commercial purposes. Agricultural prod-
ucts are in the course of business sold, and
if this record showed that the ten acres
were devoted primarily to raising nursery
plants and shrubs and the owner sold them
on the premises, this would be using the
land for agricultural purposes. However,
here the buying of large quantitiCs of
nursery plants and reselling them on the
premises, with the other evidence, support
the finding of the court that the property
was being used for commercial purposes.
Judgment affirmed.
All the Justices concur.
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T
226 Ga. 2&'I
S. Lamont SMITH, Warden
v.
Curlee STROZIER.
No. 25709.
Supreme Court of Georgia.
Aprll 9, 1970.
The Superior Court, Tattnall County,
Paul E. Caswell, J., discharged petitioner on
hearing of habeas <:orpus proceeding, and
warden of institution in wh·ich petitioner
was incarcerated appealed. The Supreme
Court, Felton, ]., held that sentence was
valid and discharge of petitioner was error
where presumption existed that plea of
petitioner, waiving indictment and plead-
ing guilty to accusation charging him with
robbery, resulting in imposition of 15;.year
sentence, ·was to lesser grade of offense
charged, robbery .by intimidation, since sen-
tence imposed was within statutory limits of
'·> .....
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§ 19.04{1] ZoNING AND LAND UsE CoNTROLS 19-18
§ 19.04 Generally
[tJ--Definition RRd Construction of Terms
Zoning ordinRRces have traditionally favored agricultural uses.
The scope of the term "agriculture" determines what is a permissible
use in a particular zone. Some ordinances define "farming" strictly
to mean· the raising of crops or animals. Such a construction rules
out related commercial and industrial enterprises, and places restric-
tions designed to minimize the harm to residential land which may
result from the incompatible features of agricultural use.
The various courts have construed the terms "agriculture,"
"farm," and "farming" in zoning ordinances in various ways.1 Much
litigation arises in regard to the raising of animals, poultry and their
products, which are considered special aspects of agricultural
use. 2 Some zoning ordinances treat greenhouses and nurseries as
authorized agricultural uses in residential districts. Others, however,
confine them to commercial districts or to residential districts of low
classification, since these operations may have more commercial
than agricultural aspects.•
A common definition of "farm" is a piece of land consisting of a
fixed number of acres which is used primarily to raise or produce
agricultural products, and the customary buildings which accom-
pany such activities. Included in this definition are the building and
maintenance of farm buildings--barns, storage facilities, and equip-
ment sheds. If farming is permitted in an area, any structures essen-
tial to farming are also permissible. Thus, a building, such as a silo,
cannot be prohibited from such an area merely because it is detri-
mental to the neighborhood.•
'See, Annotation, ""Construction and Application of Terms 'Agricultural."
"Farm.' or the Like in Zoning Regulations."" 97 ALR2d 702 (1964).
2 For discussion of animal husbandry. sec § 19.0S[l) in/l'Q.
•For discussion of greenhouses and nurseries, see § 19.04{2)[a)[ii) infra.
•Moulton v. Building Inspector of Milton, 312 Mass 19S, 43 NE2d 662 (1942).
In this case the issue was whether a new silo represents an agricultural use of land.
The court stated: in pertinent part (43 NE2d at 664):
"We are not to seek for any peculiar, abstruse, or constricted signification. These
words include all uses of land that in common speech and acceptation would be
descnbed as agricultural, no matter how injurious they may be to a neighborhood
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19--19 AGRICULTURAL ZoNING § 19.04{1]
Many ordinances contain individual definitions of "agriculture"
or "agricultural."• When no definition is included in a township
ordinance, however, the terms must be interpreted and applied in
accordance with their usual and generally accepted meaning.• In its
narrowest sense, agriculture concerns the tilling of the soil. Tradi-
tionally, however, "agriculture" has been defined more broadly.7
of homes. The test is whether the use is agricultural and not whether it is
detrimental. Nor are we here concerned with the qualification as to selling only
produce raised on the premises. since nothing at all is sold at the new silo. If the
selling on the adjoining Thatcher Farm of some vegetables raised elsewhere could
be thought material in this connection, that was protected as a use existing when
the by.law went into effect, and the Cxistence of the silo does not extend such use.
And we cannot interpret the words "selling only produce raised on the premises'
as requiring the actual raising of a crop on every piece of land in a farm."
• Carp v. Bd. of County Comm"rs of County of Sedgwick, 190 Kan 177, J73 P2d
1S3 (1962).
6 Fidler v. Zoning Bd. of Adjustment of Upper Macungie Twp., 408 Pa 260. 182
A2d 692 (1962). The court stated (182 A2d at 694):
•'Since the township ordinance failed to define •agriculture' or "agricultural' the
term must be interpreted and applied in accordance with its usual and generally
accepted meaning. Statutory Construction Act of May 28, 1937, P.L. 1019, § 33,
46 P.S. § S33; Commonwealth v. Bay State Milling Co., 312 Pa 28. 167 A 307
(1933); and. Commonwealth Trust Co. General Mtg. Invest. Fund Case, 3S7 Pa.
349. 54 A2d 649 (1947).'"
See also Town of Lincoln v. Murphy, 314 Mass 16, 49 NE2d4S3 146 ALR 1166
(1943), involving the raising of hogs. The court stated (49 NE2d at 45S):
'"A preference in favor of fanns is contained in the building by-law that requires
a permit from the building inspector for the construction or alteration of buildings
but excepts from this requirement •ordinary outbuildings used in connection with
a farm.' But neither the zoning nor the building by-law furnishes any definition
of a farm. The term is susceptible of various meanings, depending upon the
context and the purpose and intent of the contract or statute in which it appears."
The court then gave the following guidelines for the interpretation of the word
..farm .. :
"We need not pause to discuss the different shades of meaning the word has
acquired under the statutes involved in these decisions for we arc of the opinion
that, in the instant case. the word should be given its usual and commonly
understood significance. There is nothing in either by-law indicating that any
special or peculiar meaning was intended. Commonwealth v. S. S. Kresge Co.,
267 Mass 14S, 166 NE SSS; Martinelli v. Burke, 298 Mass 390, 10 NE 2d HJ;
Kennedy v. Consolidated Motor Lines, Inc., 312 Mass 84, 43 NE2d 121." Ibid.
7 See Fidler. Note 6 supl'Q. 182 A2d at 694--09S:
"'The word 'agriculture' is a derivative of two Latin words, "agri' meaning field.
(ZoGiDa; Law)
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§ 19.04(1) ZoNING AND LAND USE CoNTROLS 19-20
Under current interpretations of zoning ordinances, the widest per·
missible use of land is the rule and not the exception unless specifi-
cally provided otherwise in a valid and reasonable exercise of the
police power.•
In some recent cases, the courts have interpreted the term "farm-
ing" in various ordinances to have a more restricted meaning than
"agriculture."• The term "agricultural use" has been construed more
and 'cultura' meaning cultivation. In its narrowest sense, it concerns the tilling
and cultivating ofthe soil. See, Commonwealth v. Carmalt. 2 Binney 235 (1810).
However, it has from an early date reasonably and logically assumed a much
broader meaning.
"Webster's New International Dictionary (2d ed. 1961) defines 'agriculture' as:
'The art or science of cultivating the ground, and raisins and barvestins crops,
often includins also feeding. breeding. and management of livestock; tillage;
husbandry; fanning; in a broader sense, the science and art of the production of
plants and animals useful to man, including to a variable extent the preparation
of these products for man's use and tbeiJ !fisposal by marketing or otherwise. In
this broad use it includes farming. bortiCulture, forestry, dairying. sugar making.
etc.'
"The Oxford Universal Dictionary (3d ed. 1955) defines 'agriculture• as: 'The
science and art of cultivatins the soil; including the gatherins in of the crops and
the rearing of livestock; farming (m the widest sense).'
"CJ.S. Vol. 3, Agriculture§ I page 365, states: 'In a limited sense, "agricul-
ture" is the cultivation of grain and other field crops for man and beast; but. in
a broader sense, the word signifies the science or art of producing plants and
rearing animals useful to man. including certain matters incidental thereto.' Also
on the same page 'agriculture' is: The art or science of cultivatins the ground,
includins barvestins of crops and rearing and management of livestock. On page
366, it states: 'The distinction between arable agriculture, which includes the
cultivation of the ground and the growth of crops, and pastoral agriculture, which
comprises merely the feeding and management of the flocks and herds of the farm.
has been observed since the earliest times: "Abel was a keeper of sheep. but Cain
was a tiller of the ground." 'Seealso, Hardyv. Gapen. 141 Pa.super. IOI, 14A.2d
892 (1940)."
a 182 A2d at 695. The court stated:
"It is fundamental that restrictions imposed by zonins ordinances are in dero-
gation of the common law and must be strictly construed. Rolling Green Golf
Case, 374 Pa 450, 97 A.2d 523 (1953); Lord Appeal, 368 Pa 121, 81 A2d 533
(1951); and, Medinger Appeal, 3TI Pa217, 104A2d 118 (1954). Such restrictions
must not be so construed as to fetter the use of the land by implication. The
permissive widest use of the land is the rnle and not the exception. unless specifi-
cally restrained in a valid and reasonable excn:ise of the police power."
•Jackson v. Building Inspector of Brockton, 351Mass472,221NE2d736 (1966).
The court stated (221 NE2d at 738):
(
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19-21 AGRICULTURAL ZoNING § 19.04(1)
broadly than "farming" by courts in cases involving a turkey
farm, 1° the construction of a silo, 11 a hog raising and feeding op-
.. 1. The meaning of the relevant, everyday terms used in the ordinance. viz.
'[t]arming' and '[a)ccessory uses customarily incident to• fanning. is to be deter·
mined "according to the common and approved usages of the language.' Moulton
v. Building Inspector of Milton, 312 Mass. 195, 198, 43 N.E.2d 662. 664; Town
of Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 99-101, 111 N.E.2d 453;
Kun v. Board of Appeals of No. Reading. 341 Mass. 110, 112. 167 N.E.2d 627.
See annotation, 97 A.L.R.2d 702. 'Farming' has been held to be a more restricted
term than 'agriculture.' See Town of Lincoln v. Murphy, 314 Mass. 16, 21, 49
N.E.2d 453, 146 A.LR. 1196. Cf. Fidler v. Zoning Bd. of Adjustment. 408 Pa.
260, 262-265, 182 A.2d 692, 97 A.LR.2d 697. The definition of 'accessory use.'
already quoted, does not include a business which by the 'emission of odor
• • • [ot] the neighborhood.' This provision is of significance in construing what
the ordinance means by "farming; for it indicates that the clement of dCtriment
to the character of the neighborhood is to be taken into account in considering
at least what subsidiary uses are permissible as 'farming.' See the Moulton case,
312 Mass. 195. 197-198. 43 N.E.2d 662."
',~"'~f-,-... ~·~,;.;i:<_.;.0:_:~;,;.. ·'.'· ~-;..:_<::~-:-~.::~~'.;;""~~~ ""~F-~~'."~~-;.-~-~-:~-. ;;. ... ,..,~ :.. .., ... :~~ .. ~
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~~-----
.See Lincoln v. Murphy, 314 Mass 16, 49 NE2d453, 146ALR 1196 (1943). wfu:rc
the court stated (49 N~ at 455):
"One of the chief characteristics of a farm ordinarily is the use of the land for
the production of crops by the cultivation of the soil, but farming activities are
not confined to the tilling of the land and the barvestins of crops. I.and may be
utilized for grazins by livestock, or in raisins bay for cows for the production of
milk and other dairy products. A part of the land may be profitably employed
in the raising of poultry and the sale of chickens and eggs. There may be an
orchard upon the premises which would yield enough fruit to warrant the ~xpend
iture of labor in caring for the trees and collecting and marketing the fruit. What
branches of these farming operations will be undertaken will depend upon
whether they can be conducted at a profit. and that. in tum, depends upon the
size of the farm, the nature of its soil, its capacity to produce sufficient crops to
pay for their cultivation, the demand for different kinds of farm products, the
availability of the markets, the practice of good husbandry, and other factors that
must be considered in determinins what use should be made of the land."
10 Fidler v. Zonins Bd. of Adjustment of Upper Macungie Twp., 408 Pa 260. 182
A2d 692 (1962). The court upheld the finding of the Town Board of Adjustment
that the contemplated use as a turkey farm was "agricultural," stating:
"The board concluded that the contemplated use of the land was agricultural
and, hence, a proper use under the terms of the ordinance. The prime question
for our decision is the correctness of this ruling. The contcstant-appellce contends
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§ 19.04[1] ZoNING AND LAND UsE CoNTROI.S 19-22
eration12 and a nursery.•~
that the business intended is a large-scale commercial venture, is not agricultural,
and is specifically prohibited under Section 502(2) of the ordinance which pros-
cribes against 'all other pursuits of a commercial nature.'
'"The facts are as follows: The appellants purchase from a source in California
between 150,000 and 400,000 turkey eggs annually. The eggs are hatched at
Wcnncrsville, Pennsylvania. The poults arc presently raised and housed on appel-
lants' properties at Hucklcbcny Hill and Siegcrsville, Pennsylvania. It is intended
to establish a similar raising and housing plant on the land involved.
"Between 40,000 and 50,000 poults will be transported from the hatching site
and housed in fifteen 'pole barns,' elevated above the ground, to be constructed
on a portion of the land in question. They will be so housed and fed until six or
seven months old, when they will be trucked to another site beyond the township
· limits for the purpose of butchering and processing for markt.t. A portion of the
land will be cultivated for the purpose of growing grain to be used as feed, but
the yield will be sufficient to feed no more than 3000 or 4000 turkeys a year. The
remaining feed necessary will be purchased and transported from outside sources.
The 'pole barns' will accumulate annually 900 tons of manure." 182 A2d at 694.
u Moulton v. Building Inspector of Milton, 312 Mass 195, 43 NE2d 662 (1942).
The court stated ( 43 NE2d at 664):
''The question to be decided is therefore simply whether the new silo represents
what would commonly be understood and regarded as an agricultural DSC of land.
It is diftkult to think of the ordinary silo apart from agriculture. A silo is a
structure or vat for the storage of fodder harvested from the field and for its
conversion into ensilage to be used as food for livestock. It is a part ofthe regular
equipment of most farms that support any considerable amount of stock and is
an important instrument in the ordinary process ofhnsbandzy. Confusion seems
to ps to have crept into this case bccaDSC of the extraordinary scattering of the
Mannings' land holdings. According to the findings, however, all their parcels,
wherever situated, arc employed in a single enterprise, and that enterprise is an
agricultural one. If all their lands were joined in one tract it would immediately
become apparent that they were operating a dairy farm not essentially different
from a multitude of dairy farms. The tilling of the soil, the raising and storing
of forage crops, and the feeding of them to cattle to produce milk constitute
essentially an agricultural operation. Dictionary definitions of agriculture include
stock raising and dairying."
The court also enunciated a standard of measurement for what constitutes an
agricultural use:
"The character of the DSC of the silo as being agricuhural or otherwise is in no
way affected by the concentration or dispersion of the parcels of land upon which
the fodder is grown or by their nearness or distance, or by the fact that no
cultivation takes place in the immediate vicinity of the silo. It follows that the DSC
of lot 43 for the silo was permissible under the by-law." Id. at 664-665.
12 Carp v. Board of County Comm'rs of County of Sedgwick. 190 Kan 1 n, 373
( (
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19-23 AGRICULTURAL ZoNING § 19.04[2]
[2]-Scope of Use
[al-Quasi-Commercial Use
[ i )-Dairy farms. In the discussion of dairy farms, a question
arises about where to draw the line between agricultural and com-
mercial pursuits. In a Massachusetts case involving the expansion of
a dairy farm, the court recognized that "[a)ll agriculture conducted
for profit is commercial in some degree."14 The court held, however,
that operations do not cease to be agricultural and become commer-
cial merely because of expansion of the business.15 In general, owners
offarms are permitted, as an accessory use, to sell "farm produce on
the premises."" A Massachusetts court extended permissible uses to
P2d 153 (1962). The court, after stating that "agriculture" includes animal hus-
bandry and that a hog raising and feeding operation comes within the tenn °agricul·
ture," held that there could be no interference with the landowner's agricultural
lations.
For a discussion of greenhouses and nurseries, sec § 19.04[2](a](ii] infra.
14 Cumberland Farms of Conn., Inc. v. Zoning Bd. of App., 359 Mass 68, 267
NE2d 906, 911 (1971).
The court gave weight to the legislative history of the 1962 Amendment of Mass
Law, Ch 40A, § 5 (sec 1962 Ann Surv Mass Law, § 13.4 p. 155) and recognized
an intention to promote agriculture rather than impede rafin expansion thiough
restrictive zoning by-laws. After tracing this lcgiSlativc history and stating that "the
term 'agriculture' has a broad meaning." the court held that while expansion of the
dairy farm would have commercial aspects, it did not cease to be an agricultural
enterprise. Therefore, it was permissible under the zoning by-laws.
is Ibid.
Sec also Fidler v. Zoning Bd. of Adjustment of Upper Macungie Twp., 408 Pa
260. 182 A2d 692 (1962), where the court found (182 A2d at 694):
''The DSC contemplated is definitely ~commercial.' Whether or not it is 'agricul-
tural,' as well, is the perplexing problem.''
The court concluded that under the zoning ordinance. raising of turkeys was
"agricultural" as well.
16 Kimball v. Blanchard. 90 NH 298, 7 A2d 394 (1939). The court held (1 A2d
at 396) that:
"The owners of farms arc permitted, as an accessory use, to scll 'farm produce
on the premises.' This is the only provision in the ordinance relating to the sale
of farm products. The fact that ice cream is a 'manufactured article' (Syracnsc
(Zoniq law)
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§ 19.04{2] ZoNING AND LAND USE CoNTROLS 19-24
include the sale of farm products, dairy products and ice cream made
from products raised on the farm.17 Some courts follow strict defini-
tions of farm products in order to preserve the agricultural nature
of an area. For example, in another Massachusetts case, the sale of
fruit punch was held not to be a permissible use under a town by-law,
and the dairy farmer was limited to the sale of products made from
milk and cream.1 8 A California court held that a city could limit the
Ice Cream Co. v. Cortland, IS3 App. Div. 4S6, 138 N.Y.S. 338, 339) is not
decisive of the controversy. Cheese and butter, though produced at factories and
creameries, have been held to be 'dairy farm products,' within the meaning of a
motor-vehicle tax statute containing a provision exempting from its operation
motor vehicles used. exclusively in transporting dairy or other farm products
between the point of production and the primary .market. State ex rel. Wisconsin
Truck Owners' Ass'n v. Commission, 207 Wis. 664, 242 N.W. 668."
The court also considered the meaning of the terms in the statute and the legisla-
tive intent, as follows:
''The noun 'produce' has 'no definite, exact an4 technical meaning. It may be
used in a larger or more restricted sense.' District of Columbia v. Oyster, 4
Mackey 28S, IS D.C., 28S, 286, S4 Am.Rep. 27S. 'Agricultural product or pro-
ducts' is one of its definitions, and 'agriculture' in its broad use includes dairying.
Webster's New International Dictionary, 2d Ed. In construing the phrase 'sale
of farm produce on the premises' attention should be paid to the comprehensive-
ness of its terms and to the extent of its application.
"With these considerations in mind. we conclude that it could not have been
the purpose of the provision in question to prohibit a farmer, wherever bis farm
might be located, from selling on bis own land a commodity composed primarily
of agricultural raw material there produced. The interpretation for which the
defendants contend would place under the ban such common farm-'manufac-
tured' products as cider, maple syrup, butter and cheese. If there bad been any
intention to restrict the farmer's sales to farm produce in its natural state, the
qualifying phrase could easily have been employed."
17 Deutschman• v. Bd. of Appeals of Canton, 32S Mass 297, 90 NE2d 313 (19SO).
In extending the range of products which could be sold as part of an "agricultural
pursuit," the court held (90 NE2d at 31 S):
"The fact that the products are not in their natural state does not mean that they
cease to be products raised on the farm of their owner, who seeks there to sell
them. We believe that the nature of the article to be sold is not the sole test, but
where, by whom and in what fashion the article is produced are considerations
of importance. We do not believe that one who on bis premises processes milk
and cream from cows on bis premises thereby ceases to be a farmer, selling on
bis farm products there raised. See State v. Christensen, 18 Wash.2d 7, 33, 137
P.2d Sl2, 146 A.LR. 1302."
11 Parrish v. Bd. of Appeal of Sharon, 3SI Mass 561, 223 NE2d 81 (1967). The
(
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I: . 19-25 AGRICULTURAL ZoNING § 19.04{2)
:I. growth of a dairy farm by prohibiting landowners from enlarging or
extending use of their land and also prohibiting them from increasing
the size of the herd." Certain town ordinances require a variance
when milk and cream used in manufacture of ice cream are not
produced by the farm since manufacturing on a commercial scale is
not permitted.20 i
Although the operation of a Ii
I (. nucit?§'"O?g?&ffi\Suse retaies fu general agricultural use, there is also
a commercial aspect in the sale of products. 21 Therefore, the issue
in this area is whether agriculture or farming includes the sale of
produce grown on the premises. Different types of ordinances have
been enacted to cover this category of business. Some define specifi-
cally what type of enterprise is permitted in particular areas. When,
however, an ordinance is broadly phrased, the court must decide
whether a particular situation can be maintained under the heading
of "agriculture" or "farming." In a California case, a zoning ordi-
nance for "farming" was held to include the operation of a plant
I, c .· nursery because the city council had used "farming" in the general
sense of the word to include gardening or horticulture, fruit growing,
and the raising of vegetables. 22
Another court held that the maintenance of a "garden shop"
which sold tools and equipment violated the zoning by-law because
those articles were not incidental products of a greenhouse or
nursery. 23 Another court looked at the intention of the township
court found that the sale of fruit punch was not a de minimis violation of the bylaw
because too much flexibility in the interpretation of "farm product" could have
far-reaching results. Adverse effects might follow in an agricultural area if dairy
farmers were allowed to sell a wide range of products.
.. "City of Fontana v. Atkinson, 212 Cal App 2d 499, 28 Cal Rptr 2S (1963)
( (discussion of the limits of dairy farms).
:I
20 Kent v. Zoning Bd. of Review, 74 RI 89, SS A2d 623 (1948).
f -
22 ffa8Cnburger v. City of Los Angeles, SI Cal2d 161, 124 P2d 34S (1942). The
court held that the zoning ordinance, which established a residential district and
permitted the use of any lot for farming, permitted the raising of plants and flowers.
23 Town of Needham v, Winslow Nurseries, Inc., 330 Mass 9S, 111 NE2d 4S3,
40 ALR2d 14SO (19S3). The court discussed the dictionary definition of "nursery"
in relation to the zoning by-law as follows (111 NE2d at 456):
(ZoniA& Uw)
(
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§ 19.04[2] ZoNING AND LAND USE CoNTROLS 19--26
under an ordinance permitting "farm" use to find that the term
included use of land as a nursery. 24 The courts have also held that
.. According to dictionary definition a nursery is a place where trees. shrubs,
plants, and so forth, are propagated from seed or otherwise for transplanting. for
usc as stock for grafting, and for sale. Sec Miethke v. Pierce County, 173 Wash.
381, 23 P.2d 405; Attorney General v. State Board of Judges, 38 Cal. 291, 2%;
Miller v. Baker, 1 Mete. 27; Whitmanh v. Walker, 1 Mete. 313; Paine v. Board
of Assessors of Town of Weston. 297 Mass. 173, 7 N.E.2d 584. It is essentially
a tree plantation or, as suggested in Kenney v. Building Commissioner of Melrose,
31 S Mass. 291, at page 295, 52 N.E.2d 683, a 'tree farm.' In subsection 6 of section
3 of the by a law the word nurseries appears in conjunction with the words farms,
stock farms, greenhouses, and truck gardens, all common terms referring to
various uses of land for agricultural purposes. Extrinsic evidence to asc.ertain its
meaning is no more required than is evidence respecting the meaning of greena
house, sec the Kenney case, or of farms, sec Winship v. Inspector of Buildings
of Town of Wakefield, 274 Mass. 380, 174N.E. 476; Moulton v. Building Inspec-
tor of Milton, 312 Mass. 195, 43 N.E.2d 662; Town of Lincoln v. Murphy, 314
Mass. 16. 49 N.E. 2d 453, 146 A.LR. 1196; Deutschmann v. Board of Appeals
of Canton, 325 Mass. 297, 90N.E.2d 313. We may add that theadmittcdcvidenoc
did not in our opinion show that the tenn nursery had acquired, except possibly
in the trade, any generally accepted secondary meaning."
24 Township of Marple v. Lynam, ISi Pa Super 288, 30 A2d 208 (1943). This
was an action in equity to enjoin defendants from using, allegedly in violation of a
zoning ordinance. a certain tract of land as a nursery. The court found that a nursery
is a 0 farm" within the-permitted uses cL the ordinance.
"The fact that the nursery bas to be conducted for profi~" the court stated "docs
not decide the question." 30 A2d at 210. The court went on to discuss the general
meaning of "farm" and to evaluate the defendants' proposed usc in terms of the
intentions of the township (ibid.):
"'The lower court found that 'the popular connotation of a "farm" is a plaoc
of several acres where the owner or tenant resides, a substantial portion of which
is· devoted to the raising of crops, such as wheat, oats, bay, etc., and some
vegetables, such as com and beans, and gencrally accompanied by the breeding
of ocrtain animals such as pigs, cows, chickens, etc., the principal usc of the
produoc being to maintain the farmer and bis family and only the excess being
sold.' Obviously defendants' contemplated use docs not come within that dcfmi-
tion and the injunction was granted on that ground.
"We cannot agree that the township, in the ordinance in question, used the
word 'farm' in that sense. But even a farm of that class bas its woodlot and if,
for example, locust trees arc propagated and grown for sale as fcnoc posts or
cvcrgrccns as Christmas trees, it is still a farm.
"It is a fact of importanoc that the ordinanoc was passed long after the land
in question was subdivided into lots, and was enacted not only to regulate the
cbaractcr of buildings to be erected but to allow the owners to make some usc
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19-27 AGRICULTURAL ZoNING § 19.04[2]
while a nursery within an agricultural area is permitted along with
related activities, this does not extend to sale of nursery stock from
a roadside stand25 or to the resale of products purchased else-
where.26 The use of one acre in a residential district to raise and sell
of their land while the lots remained vacant. The average size of lots in this
subdivision is 25 X 125 feet and the ordinance permits the use of a lot as a 'farm'
with 'accessory use on the same lot' incidental to that use. It is apparent that
single lots or even the 2.6 acres of land owned by defendants are not adaptable
to farming in the sense adopted by the lower court. A general purpose farm
requires a substantial acreage. But since it was the intention of the township to
pennit an owner to use his lot as a farm, the ordinance by necessary implication
permits the usc of the land for such agricultural specialty as the size of the lot
will permit. That which is implied in an ordinance is as much a part of it as that
which is expressed. Paulsen v. Portland, 149 U.S. 30, 13 S.Ct. 750, 37 LEd. 637.
An owner, under the ordinance undoubtedly could use his lot as a flower garden
or a truck patch. These uses as well as raising nursery stock to salable size involve
the same processes as producing crops on a farm. Using the land in question as
a nursery is within the permitted uses under the ordinance." '
25 Suburbia Gardens Nursery, Inc. v. County of St. Louis, 377 SW2d 266 (Mo
1 %4). The court found that a nursery within an agricultural area was permissible
and that related activities were also permissible within limits: A roadside stand for
the sale of nursery stock was prohibited, but sale of products related to plants, such
as fungicides, was allowed under the by-law.
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sale of Christmas trees and wreaths presents a different question. N~ trees
nor the materials for the wreaths arc raised in the nursery. Their sale is nOt of
<Zonia& Law)
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§ 19.04[2] ZONING AND LAND USE CoNTROLS 19-28
flowers and evergreens and to maintain a greenhouse was held to be
a "farm" use.2 7 A business which involves the sale and resale of
plants may still be classified as "agricultural," since the term is at
least as broad as farming. 2a
[iii ]-Other Uses. The owner of a farm was held to have no
vested right to conduct the business of selling new farm equipment
in an area zoned for agricultural use on the basis of past incidental
sales of used farm equipment. 29 Another owner was entitled to use
his barn to store tobacco grown on his land under an agricultural
zoning ordinance, even though there is a commercial aspect to the
storage of goods. 30 Under some ordinances, produce grown on a
farm located in a township zoned as an agricultural district can· be
sold only on such property. 31
[b}-Quasi-Industrial Use. Certain manufacturing aspects of
agricultural operations have been held impermissible under the ap-
plicable zoning ordinances because they were not necessary incidents
to the agricultural activity. For example, operation of a sawmill in
an agricultural district was held by a Maryland court to be inconsis-
tent with other conditional uses possible under the ordinance. 32 The
living plants but of dead wood. Transactions in these articles arc no part of the
nursery or greenhouse business and are not incidental thereto.'"
27 In Re Klein, Note 26 supra. The court stated (149 A2d at 116):
"All parties agree that a nursery and a greenhouse operation is a farm use, even
onaoneacrefann. MaipleTp. v. Lynam, ISi Pa.Super. 288. 30A.2d 208. When
an ordinance permits an owner to use his property as a farm, the ordinance by
n=ary implication permits the use of the lot for such agricultural specialties
as its size will permiL Marple Tp. v. Lynam. supra.••
21 Anderson v. Humble Oil and Rd. Co., 226 Ga 252, 174 SE2d 415 (1970). The
court stated that the growing of nursery plants is farming and is conSidered agricul-
tural under the zoning ordinance. The purchase and resale of large quantities of
nursery plants, however.supported a finding in this case that the prOpertywas being
used for COJDDJerCial, and not purely agricultural. purposes.
29 Winter v. Guenther, 24 Misc2d 537, 192 NYS2d 892 (1959).
30 Southard v. Biddle, 305 SW2d 762 (Ky 1957). The pertinent zoning ordinance
resolution stated that nothing in the law should prohibit use of land for agricultural
purposes or construction or use of buildings incident to use for general agricultural
purposes of land on which such buildings were located.
31 DiPonio v. Cockrum, 373 Mich I IS, 128 NW2d S44 (1964) (produce grown
in adjacent county could not be sold by farmer on produce stand located on the
agriculturally zoned property).
32 Smith v. Miller, 249 Md 390, 239 A2d 900 (1968).
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19-29 AGRICULTURAL ZONING § 19.04[2]
court held that the zoning ordinance in question was designed to
confine an operation like the sawmill to a general industrial district
and that maintenance of a sawmill would infringe upon the agricul-
tural character of the area. 33 In a later Oregon case, the court held
that the operation of a gravel pit or park in an area zoned "agricul-
tural" was permissible as a conditional use and was not contrary to
the county's comprehensive plan if those uses would not be unrea-
sonably incompatible with the type of uses permitted in surrounding
areas. 34 A Massachusetts court allowed the operation of a dehydra-
tion machine in a zone limited to farming and accessory uses because
the materials to be dehydrated were fodder or manure actually pro-
33 Smith v. Miller, Note 32 supra. 239 A2d at 902.
l4 Desler v. Lane County Bd. of Comm'rs, 27 Ore App 709, SS7 P2d 52 (1976).
The court stated (557 Pad at 53-54):
"The 40-acre tract in question is designated "agricultural' in the county's com-
prehensive plan. In implementing the plan, the board zoned the 40 acres F-F 20
(Fann-Forestry). In F-F 20 zones, both parks and '[r)ock. sand [and) gravel
• • • excavations • • • with incidental processing" arc permitted conditional uses.
Therefore, if the uses conditionally permitted by the zoning ordinance are not
prohibited in areas designated 'agricultural' in the plan, the conditional-use per-
mit is not contrary to the plan. See Baker v. City of Milwaukie. 271 Or. SOO, 533
P. 2d 772 (1975).
"In the plan here involved the 'agricultural' designation has no rigid meaning.
The plan text states that the designation denotes land 'primarily reserved for
agricultural and related activities,' although 'some localizcd areas• • •may be
considered as "rural." ' Eugene-Springfield Metropolitan Area 1990 General Plan
at 18 (1972). A rural classification contemplates a variety of uses ranging from
open space to low density residential Eugene-Springfield Metropolitan Area 1990
General Plan, supra. In Green v. Hayward. 275 Or. 693, 552 P.2d 815 (1976),
which involved the same plan at issue in this case, the Supreme Court held that
the plan was not violated by a board decision to apply an M-3 (heayy industrial)
zone classification to land designated 'agricultural' in the plan. It follows that a
zone classification which conditionally permits gravel operations and parks is not
contrary to the plan."
The court concluded that the findings in the instant case justified operation of the
gravel pit, and that:
"Here, the ordinance recognizes a potential need to place gravel operations or
parks in agricultural areas. The ordinance also acknowledges that these uses can
only be permitted if they will 'not be unreasonably incompatible with the type
of uses permitted in surrounding areas • • • .' See Lane County Ordinance
I0.32G--OS." Id. at 54.
(7.oaiq Law)
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§ 19.04{2] ZoNING AND LAND USE CoNTROLS 19-30
duce<! on the land and there was a surplus of such materials. 35 The
court held, however, that the dehydration machine could not be used
for material which was not raised upon the land or intended for use
upon it. 36 Other courts have construed "farming" more broadly. For
example, a Pennsylvania court found that the production of syn-
thetic compost, an effective growing medium for mushrooms, came
within the term "farming," and was not a manufactured article. 37 An
Illinois court decided that the spreading of digested sludge as liquid
organic fertilizer and soil conditioner on farmland was for an "agri-
35 Jackson v. Building Inspector of Brockton, 351 Mass 472, 221 NE2d 736
(1966). The court stated (221 NE 2d at 738-739):
'"We construe the Brockton ordinance (see the Moulton case, 312 Mass. 195,
197-199, 43 N.E.2d 662, 663, where the operator of a farm had arrangements
with about 200 property owners in a single town for the use of their parcels 'for
pasturing cattle and for growing' fodder) to permit the operation together of a
number of farms within the same general area, if the farms are controlled and
operated by the same person as part of the same general enterprise. The operation
together by the same person of widely scattered farms in several communitiCs is
likdy to present a somewhat different situation. If Jackson's machine should be
used for dehydration of fodder materials for use (a) on land unreasonably distant
from the locus or (b) on nearby land not controlled and operated by Jackson, the
dehydration would have some of the aspects of manufacturing rather than fann-
ing in its effect on the community."
The court recognized, however, that the by-law in Moulton permitted '"agricul-
tural" use, which is a broader term than '"fanning" permitted in the instant case,
and stated (221 NE2d at 739):
"We would not view as 'fanning' use of the machine to dry farm products apart
from any farming operation. We think that it is only when dehydration has
reasonably direct relation to farming operations of its owner that it can be
regarded as in any sense 'fanning.' "
36 Ibid.
37 Gaspari v. Bd. of Adjustment of Twp. of Muhlenberg, 392 Pa 7, 139 A2d 544
(1958). The court reasoned (139 A2d at 548):
"An article which comes into being through human and mechanical manipula-
tion of raw materials which in themselves are not active partners in the transform-
ing and creative process can be said to be a manufactured article.
'"In the process under discussion the hay and com cobs participate in the
chemical and biological changes when water is poured over them and they are
mixed, turned, and moved in the open air. And, as the photographs introduced
in evidence reveal, the hay and com cobs. at the termination ofthe process, have
not emerged as distinctly new articles. They are readily recognizable even in the
fmal stage of the operation."
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19-31 AGRICULTURAL ZoNING § 19.04{2]
cultural purpose."38 Finally, an Illinois court held that fiber glass
boats cannot be manufactured on land zoned for agricultural
uses.39
38 County of Grundy v. Soil Enrichment Materials Corp., 9 Ill App3d 746, 292
NE2d 755 (1973). Under the Illinois Statute (Ill Rev Stat, Ch. 34, § 3151), spreading
of digested sludge as a liquid organic fertili= and soil conditioner on farntland in
the county was considered to be for an agricultural purpose and, therefore, was not
subject to control by county zoning. This same result was reached when the case
was later tried as Soil Enrichment Materials Corp. v. Zoning Bd. of Appeals of
Gi:undy County, 15 Ill App3d 432, 304 NE2d 521 (1973).
••County of Cook v. Glasstex Co., 16 Ill2d 72, 156 NE2d 519 (1959). The court,
in upholding the constitutionality of the ordinance, declared that merely because the
property owner's land might be worth more for light manufacturing than for any
of the uses permitted under the county zoning ordinance, was not of itself reason
to invalidate the ordinance on taking or due process grounds.
(7.anins U.w)
-::\4:
• • SCHENK. KERST & DI<JWJNTJ<'R
JOHN R. SCHENK
DAN KERST
WILLIAM J. DEWINTER, Ill
Mr. Mark Bean
ATTORNEYS AT LAW
FIRST NATIONAL BANK BUILDING
SUITE 310. 302 EIGHTH STREET
GL1'-;N\\'OOI> SPHINGH, COL(>RAllO HlOOl
1303) 945-2447
September 26, 1985
Director of Planning Department
Garfield County Courthouse
109 Eighth Street, Suite 303
Glenwood Springs, CO 81601
RE: Application -Mccarney Zoning Violation
Dear Mark:
I enclose herewith an Application filed on behalf of Gene Thompson,
James H. Hurtig and James H. Luttrell requesting the Zoning Board of Adjust-
ment to interpret Section 3.02.01 of the Zoning Resolution and to find that
the McCarneys 1 use snd proposed use of their property for retail sales
violates the Zone District Regulation. I also enclose my trust account check
in the sum of $35.00 in payment of the Application fee, together with a
portion of the U.S.G.S topographic map showing the approximate location of
the subject property. I also enclose the completed Public Notice form to be
published and mailed in anticipation of the Board's regular meeting to be
held October 24, 1985. As I read the Zoning Resolution, I am not sure that
it requires public notice for an appeal of this type as opposed to a Variance
Application which is provided for in Section 9.05.04. Although the publica-
tion and mailing is no problem in this regard, posting of the McCarneys'
property may be difficult, if not impossible, to accomplish without commit-
ting a trespass. Please provide me your thoughts in this regard.
DK/rec
Enc.
cc Gene Thompson
James H. Hurtig
James H. Luttrell
• •
APPLICATION
GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT
The Applicants, GENE THOMPSON, JAMES H. HURTIG and JAMES H. LUTTRELL,
by and through their undersigned attorney, hereby appeal to the Garfield County
Zoning Board of Adjustment pursuant to Section 8.02.03(1) and (2) of the Gar-
field County Zoning Resolution, as amended, regarding the interpretation by the
Garfield County Building Official of that portion of Section 3.02.01 of the
Zoning Resolution which reads as follows:
"Uses, By Right: Agricultural, including farms, garden, greenhouse,
nursery, orchard, ranch, small animal farm for production of poultry,
fish, fur-bearing or other small animals and customary accessory uses,
including buildings for shelter or enclosure of persons, animals or
property employed in any of the above uses, retail establishment for
sale of oods rocessed from raw materials roduced on the lot;"
emphasis added
Applicants believe that STEVE and MARY McCARNEY, owners of that real
property located in the Agricultural/Residential/Rural Density Zone District at
12744 Highway 82, Carbondale, Colorado, have used and propose to use said real
property in a manner and for a purpose not permitted by the above quoted Zone
District Regulation, namely the retail sale of goods and merchandise other than
those "processed from raw materials produced on the lot". Upon information
available to the Applicants, it is believed that McCarneys have carried on and
intend to continue carrying on the sale of goods and merchandise from the above
stated location, which goods and merchandise are brought upon the property for
the sole and express purpose of resale. Neither the clear language or the
intent of the above quoted Zone Regulation permits such activity, which acti-
vity.
Section 2.02.52(1) of the Zoning Resolution provides, in part, that "a
lot is restricted to one principal use". Applicants believe that McCarneys' use
of the subject property as above stated and for their residential purposes
violates this provision.
Section 1.07 of the Zoning Resolution makes the Regulations contained
therein applicable to the entire unincorporated area of Garfield County, Colo-
rado, within which the subject property of the McCarneys is located, Said
Section further provides, in part, that "no ••• land, building or structure be
used for any purpose or in any manner other than as provided among the uses
hereinafter listed in the Zone District Regulation for the District in which
such land, building or structure is located;". Section 11.00 of the Zoning
Resolution also provides, in part, that "in their application and interpreta-
tion, the provisions of this Resolution shall be held to be minimum require-
ments."
The Applicants have requested the Building Official of Garfield County
to enforce the provisions of the Zoning Resolution as applicable to the above
referenced actions of McCarneys and to take action as necessary to enjoin and
prevent the unlawful use of the subject property as hereinabove asserted. The
Building Official has failed and refused to take the action requested and this
appeal is in response thereto.
• •
Applicants hereby respectfully request the Board, in the exercise of
it powers as provided in Section 8.02.03 of the Zoning Resolution, to interpret
Section 3.02.01 of said Resolution to prohibit the use and proposed use of
McCarneys' property in the manner above described and to thereby authorize the
County Building Official to enforce the provisions of the Zoning Resolution as
so interpreted.
Respectfully submitted this 26th day of 1985.
By: ~~-+.''---c-7'~~-=-~~~~~~~~~ an Kers ,
Applicants:
Gene Thompson
James H. Hurtig
James H. Luttrell
Address:
c/o Schenk, Kerst & deWinter
302 Eighth Street, Suite 310
Glenwood Springs, CO 81601
(303) 945-2447
Attorney for Applicants
302 Eighth Street, Suite 310
Glenwood Springs, CO 81601
(303) 945-2447
Practical Description of Subject Parcel: Approximately one-half (~) mile east
of the intersection of Colorado State Highways 82 and 133, northerly of Carbon-
dale, Colorado.
Legal Description of Subject Parcel:
incorporated herein by this reference.
See Exhibit "A" attached hereto and
Present Zoning: A/R/RD --Agricultural/Residential/Rural Density
2
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EXHIBIT "A"
PARCEL A
A tract of land situate in Lots 6 and 9, Section 27, Township 7 South, Range 88
West of the 6th Principal Meridian described as follows:
Beginning at a point on the North line of State Highway No. 82 whence the East
Quarter Corner of said Section 27 bears N. 74°23'30" E. 2,026.30 feet (being the
Southeast corner of that certain tract described in Book 334, Page 169, Garfield
County Clerk's Office); thence North along the East boundary of said tract a
distance of 250 feet; thence West a distance of 200 feet; thence South 51 feet;
thence East 11 feet; thence South 16 feet; thence West 11 feet; thence South a
distance of 183 feet, more or less, to the North line of Colorado Highway 82;
thence N. 89°20' E. along the Northerly boundary of Highway 82, a distance of
200 feet more or less, to the point of beginning.
PARCEL B
A parcel of land situated in Lot 9 of Section 27, Township 7 South, Range 88
West of the Sixth Principal Meridian, said parcel of land is described as
follows:
Beginning at the East Quarter Corner of said Section 27; thence s. 74°23'30" W.
2026.30 feet; thence North 250.00 feet to THE TRUE POINT OF BEGINNING; thence
West 200.00 feet; thence North 25.00 feet; thence East 200.00 feet; thence South
25.00 feet to THE TRUE POINT OF BEGINNING,
known as 12744 Highway 82, Carbondale, Colorado.
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• • PUBLIC NOTICE
Take Notice that GENE THOMPSON, JAMES H. HURTIG and JAMES H. LUTTRELL have applied to the
Zoning Board of Adjustment, Garfield County, State of Colorado, to appeal the interpreta-
tion of the Garfield County Zoning Resolution as applied to the following described
property owned by Steve McCsrney and Mary McCsrney and situated in the County of Garfield,
State of Colorado; to wit:
Legal Description:
PARCEL A
A tract of land situate in Lots 6 and 9, Section 27, Township 7 South, Range 88 West of
the 6th Principal Meridian described as follows:
Beginning st s point on the North line of State Highway No. 82 whence the East Quarter
Corner of said Section 27 bears N. 74°23'30" E. 2,026.30 feet (being the Southeast corner
of that certain tract described in Book 334, Page 169, Garfield County Clerk's Office);
thence North along the East boundary of said tract s distance of 250 feet; thence West s
distance of 200 feet; thence South 51 feet; thence East 11 feet; thence South 16 feet;
thence West 11 feet; thence South s distance of 183 feet, more or less, to the North line
of Colorado Highway 82; thence N. 89°20' E. along the Northerly boundary of Highway 82, s
distance of 200 feet more or less, to the point of beginning.
PARCEL B
A parcel of land situated in Lot 9 of Section 27, Township 7 South, Range 88 West of the
Sixth Principal Meridian, said parcel of land is described as follows:
Beginning st the East Quarter Corner of said Section 27; thence s. 74°23' 30" W. 2026.30
feet; thence North 250.00 feet to THE TRUE POINT OF BEGINNING; thence West 200.00 feet;
thence North 25. 00 feet; thence East 200. 00 feet; thence South 25. 00 feet to THE TRUE
POINT OF BEGINNING,
known as 12744 Highway 82, Carbondale, Colorado.
Practical description is approximately one-half (~) mile easterly of the intersection of
Colorado State Highway 82 and 133, northerly of Carbondale, Colorado.
Said Application requests the Board of Adjustment to interpret Section 3.02.01 of the
Zoning Resolution to prohibit the use and proposed use of the subject property for the
retail sale of merchandise and goods in the manner carried on and proposed to be carried
on upon said property.
All persons affected by the proposed Application are invited to appear and state their
views, protests or objections. If you cannot appear personally st such meeting, then you
are urged to state your views by letter, particularly if you have objections to such
Application, as the Zoning Board of Adjustment will give consideration to the comments of
surrounding property owners and others affected, in deciding whether to grant or deny the
request. The Application may be reviewed at the office of the Department of Development,
Planning Division, located at the Garfield County Courthouse, 109 Eighth Street, Suite
303, Glenwood Springs, Colorado, between the hours of 8:00 A.M. and 5:00 P.M. (excluding
lunch hour 12:00 noon to 1:00 P.M.) Monday through Friday.
That s public hearing of the Application has been set for the 24th day of October, 1985,
st the hour of 3:30 P.M. at the Garfield County Courthouse, 109 Eighth Street, Suite 302,
Glenwood Springs, Colorado .
GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT
By:
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We the undersigned agree to join in filing a complaint with Garfield County
claiming a vio~~/~ion of zoning codes by virtue of the business carried on
Steve and Mar/j.'e'arney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
We the undersigned agree to join in filing a complaint with Garfield County
claiming a violation of zoning codes by virtue of the business carried on
Steve and Maryl'ft'arney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
L.
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We the undersigned agree to join in fili claiming a viqJ~tion of zoni d b ng a complaint with Garfield County
Steve and Marf'tarney on th ~g co es y virtue of the business carried on
Carbondale, Colorado 81623.e r property located at 12744 State Highway 82,
I CJ-7~o /Jc{) 'I g 2-
/c)_ 7.-5 0 Hw1 ~ 8 J_
I 2 7 d ~ d<./'1 cS~c_
/~ / V6: ~/· c<L ...
We the undersigned agree to join in filing a complaint with Garfield County
claiming ~~violation of zoning codes by virtue of the business carried on
Steve and Mary Carney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623 •
•
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We the undersigned agree to join in filing a complaint with Garfield County
claiming ~~violation of zoning codes by virtue of the business carried on
Steve and~Mary Carney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
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MRS P F MC PHERSON
12"..6S HWY Ii!
CA~BONOALE CO 8162]
..
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.. .,,,. .•
We the undersigned agree to join in filing a complaint with Garfield County
claiming a vio~~tion of zoning codes by virtue of the business carried on
Steve and Mar~·~arney on their property located at 12744 State Highway 82,
Carbondale, Colorado 81623.
/0Zt11
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