Loading...
HomeMy WebLinkAbout1973-05-301 ANIMAL PERMITS - Cont'd Eugene F. Delfino, 75 Reed Street Frederick J. Hopwood, 172 Burlington St. John D. Brucchl, 63 Paul Revere Road Harry Rowe Mimno, 83 Pleasant St. Patrick J. Montouri, 12 Paddock Lane Wilson Farm Inc. Pleasant Street Walter J. McDonald, 14 East Street Mrs. Martin Rowe, 69 Blossomcrest Rd. Vernon M. Parsons, 65 Allen Street 475 1 horse, 1 pony 4 horses 8 horses, 6 sheep 6 goats, 2 deer 200 poultry 6 horses, 5 chickens 2 rabbits 1 pony 5000 poultry, 1 cow 3 horses 2 horses 1 horse SPECIAL MEETING OF BOARD OF HEALTH MAY 30. 1973 A special meeting of the Board of Health was held Wednesday, May 30. 1973 at 4:30 P.M. in the Board of Health Office to ac- cept and record the vote of the Board regarding the Mason, Mc- Donald brief and conclusion. Board members present were: Dr. William L. Cosgrvoe, Chairman, Mr. James Lambie, Dr. Charles E. Ellicott and Robert C. Heustis, Director of Public Health. Each Board member stated that they had read the draft of their decision on the complaint of Russell B. Mason and others against Walter J. McDonald, concerning the keeping of horses at 14 East Street, Lexington, Massachusetts. By unanimous vote the Board accepted the draft of reasons set forth to reject the complaint of Russell B. Mason and others and by unanimous vote the Board ordered that the permit for keep- ing horses issued to Walter J. McDonald, at 14 East Street, Lex- ington, Massachusetts, continue in effect and be renewed in the future providing, of course, that all applicable rules and regulations and public health safeguards continue to be observed. Dr. Cosgrove instructed the Clerk to notify Mr. Norman Cohen, Town Counsel, of this meeting and the decision of the Board. He also suggested that Mr. Cohen notify Mr. Mason's attorney, Mr. Skerry, that this special meeting was called to accommodate Mr. Mason and the Board felt they had been more than fair to Mr. Mason. Dr. Ellicott reported that at his meeting with the Board of Selectmen they gave their permission for the Board to apply for funds from the Board of Public Trusts and the Well Elderly Clinic will be able to proceed. These funds will be administered by the Health Department to the Lexington Visiting Nurse associa- tion. Meeting adjourned. A true copy: Dorothy Jones, Clerk e Decision of Lexington Board of Health on Complaint of Russell B. Mason, and others, Against Walter J. McDonald, Concerning the Keeping of Horses at 14 East Street, Lexington The Board of Health ("Board") heard evidence and arguments on this matter on September 11, 1972, and April 4, 1973. Walter J. McDonald of 14 East Street, Lexington, has applied for and been granted a permit by the Board pursuant to G.L. c.111, §155, and the Board's Rules and Regulations ("Regulations") c.VII, §7, to keep horses at his premises at 14 East Street. Such permits have been granted annually to him since September 1965. The number of horses covered by the permit was originally two, but increased to three in 1969. Russell B. Mason has resided at 1 Frost Road, Lexington, since 1966. His property is separated from the McDonald property by an intervening lot and by Frost Road. The distance of the Mason residence from the McDonald prop— erty is approximately 200 feet, and a thick row of trees and bushes separates them. Horses are also kept on other, nearby lots. Mr. Mason brought to the Board a petition, dated July 30, 1972, stating that four reasons existed why horses should not be permitted to continue to be kept on the McDonald property. The petition was signed by thirteen people, in addition to Mr. Mason and his wife. The Board has considered each of the four reasons, and certain other facts and allegations presented at the hearings, and for the reasons stated below refuses to order removal of the horses from the McDonald property. 1. Nuisance from horse dander. There was undisputed evidence, which the Board necessarily accepts, that the Mason children suffer from an allergy to horse dander. Horse dander is shed by horses, especially when they are curried. The Board finds that there is no evidence that the Mason children's allergy is caused by the horses kept by McDonald. The weight of medical opinion appears to be that the airborne spread of dander is highly unlikely at such distance as the Mason property is from the McDonald property. Even if the McDonald horses were the source of dander irritating the Mason children, that fact would not establish a nuisance which would lead this Board to order removal of the horses. However unfortunate, the peculiar susceptibility of certain persons to conditions which do not affect the vast majority of persons cannot be the basis of orders by this Board. The Masons moved to the property near the McDonalds after horses, pursuant to a permit issued by this Board, were being kept on the McDonald property. The Mason children had developed their allergy to horse dander at an earlier time, when the Masons resided near a stable for over fifty horses. The Masons, knowing their children's allergy condition, could have chosen an area where no horses were kept nor likely to be kept, if they actually believed that horse dander could travel such extreme distances as are alleged in this matter. 2. Health hazards from flies, rodents, and other insects. No probative evidence was presented to the Board that any adverse general health consequences are caused by the keeping of horses in residential areas. Indeed, if such consequences did occur, no permits for horses (or many other animals) should be granted. The fact that no such prohibition exists in state or local law suggests that the McDonalds should not be singled out on this alledged ground. Of course, any particular instance where horses are kept may disclose health hazards. The Board is convinced that Mr. McDonald maintains his -2- property and horses in a proper and prudent manner, so that no health hazard is created upon his property. The offer at the second hearing of a jar full of flies allegedly collected on the Mason property cannot be taken to show unsanitary conditions on the McDonald property. Some question was raised at the hearing concerning whether the notation on the McDonald application for a permit that manure was to be removed from the premises weekly did not violate the Board's Regula- tions eg la - tions that manure be removed from stalls and corrals daily. Regulations c.VII, §6.d. The answer to this contention is, of course, that the Regulations refer to removal from stalls and corrals only, presumably to some waste storage area, and do not contemplate removal entirely from the premises. The Regulations themselves provide for storage of manure (including that removed from stalls and stables) in an appropri- ate ppropriate manner. Regulations c.VII, §6.e. It would be unreasonably burden- some for the Regulations to require daily removal of manure from the premises, and such a requirement would serve no public health interest. Properly stored manure, at least for the weekly periods referred to in the McDonald application, presents no health hazard. -In light of these circumstances, we also reject the argument that the McDonald land is a health hazard under G.L. c.11l, §122. 3. Conditions and size of lot. There was no evidence, and the Board declines to find, that the McDonald lot is too small for three horses to be kept on it. The town veterinarian examined the McDonald's barn and found it to be in satis- factory condition. There was evidence presented at the hearing before the Board that the McDonald lot was wet or swampy, and therefore unfit under the -3- Regulations to be used for keeping horses. Regulations, c.VII, §6.j. The Board finds that such an allegation is utterly without support. A picture presented to the Board showing standing water on the land was taken the day after an extraordinary rainfall. Much of the land in Lexington would have appeared swampy following that rain. The McDonald lot as a whole, and stable in particular, are on firm, dry ground. Moreover, the corral area contains an adequate drain to carry away such rainfall as might accumulate. From what has just been said, the McDonald lot is further manifestly not "wet, rotten, or spongy, or covered with stagnant water", within the meaning of G.L. c.11l, §132. 4. Commercial activity in keeping horses. Despite certain allegations, there was no evidence presented to the Board that the horses kept on the McDonald property were not owned by the McDonalds. In any event, the question whether the McDonalds are conducting a commercial activity or keeping animals in violation of the zoning by-laws is not a matter as to which this Board has any jurisdic- tion. Even if the horses were kept as a commercial enterprise, the manner in which they are kept creates no nuisance or public health hazards, and so cannot be ordered stopped by this Board. 5. Change of conditions or conditions injurious to public health or restricting normal use and enjoyment of contiguous property. An amendment to Chapter VII of the Board's Regulations, adopted on March 2, 1971, prohibited the keeping of horses on lots less than two acres of land. Regulations c.VII, §5.d. The McDonald lot is less than an acre in size. But the amended Regulations provided that permits issued prior to March 2, 1971, would be valid and renewable provided -4 t that "[1] conditions and agreements contained in the original application have not changed and [2] that no conditions exist that would be injurious to the public health or restrict the normal use and enjoyment of contiguous property". Regulations, c.VII, §7.d. The keeping of horses on the McDonald lot after March 2, 1971, is therefore proper only if this two part test is met. There has been no change of conditions from those obtaining in the applications prior to March 2, 1971. There was an allegation made that prior to 1970 the McDonald horses were kept on pasture land across the street from the McDonald lot at 14 East Street, although this charge was disputed. It is sufficient to say that the permits were always for the McDonald lot at 14 East Street, and the Board, in issuing such permits, found that lot to be a proper area for keeping horses. In any event, the supposed change occurred in 1970, which would still place the horses on the McDonald lot at 14 East Street prior to March 2, 1971, the•effec- tive date of the amended Regulations. There was no -evidence to support the charge, and the Board therefore rejects any allegation,. that more than three horses are being kept on the McDonald lot. No other changed circumatances were alleged, much less proven. The second part of the test in the quoted clause, whether there was injury to the public health or restriction in the "normal" use and enjoyment of nearby property, has already been answered earlier in this decision. For the reasons already stated, the horses kept on the McDonald property do not cause such injury to health or restrictions on neighbors' "normal" use of their properties. -5- Conclusion For the reasons set forth in this decision, we reject the complaint of Russell B. Mason and others. The Board orders that the permit for keeping horses issued to Walter J. McDonald, at 14 East Street, Lexington, continue in effect and be renewed in the future providing, of course, that all applicable rules and regulations and public health safeguards continue to be observed, as we find they are presently being observed. We would urge Mr. McDonald, in the interests of avoiding further dispute in this matter, but not as a condition of this order, to confine curry- ing horses kept on his lot to enclosed areas, such as the barn, to pre- clude even the suspicion that horse dander is being spread. Adopted by unanimous vote: May 30, 1973