COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF THE TRIAL COURT

HAMPSHIRE, ss.

SUPERIOR COURT
C.A. No. _______________

SWEET MEADOW FARM, LLC,

Plaintiff
v.
COMMONWEALTH OF
MASSACHUSETTS, BY AND THROUGH
THE DEPARTMENT OF
AGRICULTURAL RESOURCES AND
ALLARD'S FARMS, INC.,
Defendants

PLAINTIFF SWEET MEADOW FARMS MEMORANDUM OF LAW IN

SUPPORT OF ITS MOTION FOR INJUNCTIVE RELIEF
Plaintiff Sweet Meadow Farm, LLC, (Sweet Meadow) for its Memorandum of Law
in Support of its Request for Injunctive Relief, states as follows:
Introduction and Summary of Factual Background
Plaintiff Sweet Meadow incorporates herein its Verified Complaint and the attached
affidavits of attorney Norman Guz and appraiser Robert OConnor, MAI.
Sweet Meadow plans to operate a farm-to-table restaurant on Rt. 9 in Hadley and was
the high bidder (for $2.3 million) at the foreclosure sale of three parcels a restaurant
building, a parking lot and adjoining farmland.

Sweet Meadows principal, Keith

Rehbein, is a qualified farmer with extensive farming experience in Hadley and Amherst.
Mr. Rehbein paid signed a memorandum of sale for each parcel with the mortgagee bank,
and put down a $50,000 deposit for the farmland parcel.

The farmland parcel was subject to an Agricultural Preservation Restriction (APR)

and also an option to purchase held by the Defendant Massachusetts Department of
Agricultural Resources (DAR), the agency which regulates APRs. The option price is
for agricultural value. By statute, the purpose of an APR is to limit use of designated
land to bona fide agricultural use. Mr. Rehbein applied for a waiver of the DAR option.
Historically, it is believed that the DAR has never denied a request for waiver of an
option it held, except in perhaps one or two instances, and never from a qualified farmer.
It is believed that the DAR had never exercised and assigned an option to purchase APR
land. DAR had no guidelines to do so.
The mortgagees appraisal suggested an agricultural value of the farmland parcel of
$305,000. At the foreclosure auction, Allards Farms bid $405,000 and Mr. Rehbein
topped that, with a bid of $410,000. The DAR asserted concerns that the price bid by Mr.
Rehbein was too high.
In a submission to DAR, Mr. Rehbein explained his specific business reasons for his
bid: (1) the restaurant farm-to-table business plan; (2) his ownership of the two adjoining
parcels; (3) local zoning restriction issues, which could require that the restaurant only be
supplied by the adjoining farmland.
DAR invoked an internal 25% threshold limit, triggered when an offer for APR land
(i.e., Mr. Rehbeins $410,000 bid price) exceeds agricultural value (appraised at
$305,000) by more than 25%.

Based on this threshold in an unprecedented action

DAR denied Mr. Rehbeins request for waiver of the option, exercised its $305,000
purchase option and ultimately assigned it to another qualified farmer, the low bidder at
auction, Allards Farms, which had bid $405,000 for the same parcel.

The DAR denial of Mr. Rehbeins request for waiver, and the DAR assignment of its
option to purchase the parcel at issue, was unlawful, arbitrary and capricious, and beyond
DAR authority. Sweet Meadow requests that an injunction issue to maintain the status
quo pending disposition of its claims.
THE STATUTORY

AND

REGULATORY FRAMEWORK

The Statute
Agricultural Preservation Restrictions (APR) are created under M.G.L c. c. 184,
31 and are defined as
a right, ...in any deed ... to forbid or limit any or all (a) construction or
placing of buildings ... ; (b) excavation, dredging or removal of loam ,
peat, gravel, soil, rock or other mineral substance in such a manner to
adversely affect the lands overall future agricultural potential; and (c)
other acts or uses detrimental to such retention of land for agricultural use.
The release of an APR is governed by M.G.L. c. 184, 32.

Among other

requirements, an APR cannot be released without public hearing and only if the land is
no longer deemed suitable for agricultural or horticultural purposes or unless the general
court votes for release as in the public good. M.G.L. c. 184, 32.
A body determining whether to release or continue an APR shall take into
consideration agricultural preservation; programs in furtherance thereof and any
public state, regional or local comprehensive land use or development plan affecting the
land ... M.G.L. c. 184, 32.
Taxation of land devoted to agricultural and horticultural use is addressed in M.G.L.
c. 61A, 1-5. Under M.G.L. c. 20, 23, the Secretary of Environmental Affairs is
directed
to establish a program to assist the Commonwealth in the acquisition of
agricultural preservation restrictions as defined in section 31 of chapter

184, for land actively devoted to agricultural or horticultural uses as

defined in sections 1 through 5, inclusive, of chapter 61A.
M.G.L. c. 20, 23.
The Regulations
At 330 CMR 22.00 et seq., Massachusetts has published regulations to implement the
terms of M.G.L. c. 184, 31 and 32, entitled Agricultural Preservation Restriction
Program. The regulations the regulations are intended
to provide guidance and clarification to present and future APR Parcel
Owners regarding their responsibilities and the Departments
responsibilities under St. 1977, c. 780 [i.e., M.G.L. c. 184, 31], in
conjunction with direction and guidance provided in Department policy
statements, guidelines and other informational sources referenced in 330
CMR 22.13; and to regulate activities and uses that may be detrimental to
the retention of the land for agricultural use in perpetuity.
330 CMR 22.01.
The criteria for granting an APR in the first instance by the Agricultural Lands
Preservation Committee (ALPC) of the DAR are set out in Section 7. Three appear to
be derived from the statute: (1) preserve and enhance the agricultural resource base,
(2) suitability of the land for agricultural use, and (3) the fair market value of the land
with and without agricultural use.

330 CMR 22.07(1)(a)-(c).

This last purpose is

consistent with the mechanism of payment for (typically) the value of development rights
as a precursor to APR designation.
The additional criteria are: contribution to a development program of acquiring
multiple APRs in a region; degree of local assistance with funds, legal and enforcement
services; [o]pportunities for individual and family farm ownership and for employment
through farm related processing, storage, transportation, and marketing of farm

products; and threats to continuation of agriculture on the project. 330 CMR 22.07(2)
(a)-(d).
Where there is an option to purchase held by the state, an owner of APR must notify
the DAR of a proposed sale with an offer to for the state to purchase. Along with notice,
among other things, the owner must provide a summary of buyers agricultural
experience and farm plan for immediate agricultural use of the APR parcel. 330 CMR
22.10(1).
The regulations refer to the establishment of DAR policies, guidelines and
procedures in addition to the APR restriction documents that are periodically updated and
that provide further guidance for Owners. Copies of APR regulations and DAR policy
documents are to be posted on the DAR website. Changes to policies may be raised at
ACPC meetings, which are public; but any change to policy is on the sole discretion of
the Commissioner.
The APR and Option to Purchase
The APR itself, as part of the deed to the Spruce Hill land, declares its purpose:
to perpetually protect and preserve agricultural lands, encourage sound
soil management practices ... , preserve natural resources, maintain land in
active agricultural use, and ensure affordable resale values of agricultural
land.
The Option to Purchase in favor of DAR states, as its purpose:
The intent of this option is to ensure that the Premises remains affordable
for agricultural production and that its market value for other uses does not
preclude its profitable use for agriculture.
The price for the states option to purchase is set at market value for commercial
agricultural production. In the Option to Purchase, recorded with the APR, the DARs
assignment of it option is described as follows:

The Grantee [Massachusetts] may assign its Option at any time after
providing the Grantor [i.e., Russell] notice of its election ..., provided that
the Option may only be assigned to a party which, in the Grantees
opinion, will use, or facilitate the use of, the Premises for commercial
agricultural production.
THE PRELIMINARY INJUNCTION STANDARD
In determining whether to grant a preliminary injunction, the Court first evaluates
plaintiffs likelihood of success on the merits; then, the Court decides whether denial of
injunction would subject plaintiff to a substantial risk of irreparable harm, a risk which is
to be balanced against any other partys risk of the same harm. If so, in the Courts
discretion, the injunction should issue. Packaging Industries Group v. Cheney, 380 Mass.
609, 617 (1980).
DARs Conduct Was Beyond Its Authority, Based on Errors of
Law and Arbitrary and Capricious
The Court may set aside an agency decision under M.G.L. c. 30A where the decision
is in excess of statutory authority, or based on an error of law, or made on unlawful
procedure, or is unsupported by substantial evidence. M.G.L. c. 30A, 14(7); Rivas v.
Chelsea Housing Authority, 464 Mass. 329, 334 (2013).
This DAR action was unauthorized and unreasonable for several different reasons.
First of all, the two interested parties, Mr. Rehbein and Allards Farms, were both
qualified farmers who proposed legitimate agricultural uses for the parcel, and who had
made nearly identical high bids for the same parcel.
Second, the agricultural value of the land was properly at least $370,000 or more,
such that the internal DAR threshold for intervention should never have been reached.
On this basis, Mr. Rehbeins requested waiver should have been granted. (See, Affidavit
of appraiser Robert OConnor, MAI, attached to this Memorandum).

Third, the DARs unprecedented foray into the assignment of its option, against a
background of bankruptcy and foreclosure, yielded unintended adverse consequences,
including the inability of the foreclosing bank to issue good title to DAR assignee
Allards Farms. (See, Affidavit of Norman Guz, attached to this Memorandum).
Fourth, the DAR had no published procedure or guidelines to determine an assignee.
DAR eventually generated and posted guidelines, in May, 2015, but long after the
February auction, and only after Mr. Rehbein had sought a waiver of the DAR option in
April.
DAR enacted and adopted review criteria for assignment of the option, after Mr.
Rehbein had submitted his request for waiver of the option, while already fully familiar
with the qualifications, background and experience of competing bidders, Mr. Rehbein
and Allards Farms, such that DAR picked the assignee by the criteria it adopted.
Finally, the DAR has no statutory or other authority to exercise and assign options on
APR land. It certainly has no authority to do so for the asserted purpose of controlling
farmland prices, as it claimed here.

An administrative agency, however, has only the

powers and duties expressly conferred upon it by statute and such as are reasonably
necessary to carry out its mission. Morey v. Marthas Vineyard Commission, 409 Mass.
813, 818 (1991). An agency is without authority to promulgate a regulation which
exceeds the authority conferred upon it by statute. Id.
In Morey, the Supreme Judicial Court invalidated a regulation which improperly
expanded the powers of the agency to review and restrict building proposals. Id. at 820.
See also, Simon v. State Examiners of Electricians, 395 Mass. 238, 249 (1985)(regulation

impermissibly broad); Mass. Municipal Wholesale Elec. Co. v. Mass. Energy Facilities
Siting Council, 411 Mass. 183, 197 (1991)(councils orders beyond its authority).
The Option to Purchase in favor of DAR states, as its purpose:
The intent of this option is to ensure that the Premises remains affordable
for agricultural production and that its market value for other uses does not
preclude its profitable use for agriculture.
While DAR may assert almost any purpose as a contracting party holding an option,
when it purports to exercise and assign its option to a third party, it must do so in a
manner and for a purpose authorized by statute. DAR did not do so here.
Assignment of a DAR option to purchase APR land, for the purpose of controlling
APR land prices, or farmland prices, is not authorized under the APR statute, M.G.L. c.
184, 31-33. Generally, monopolies and price controls are unlawful unless expressly
authorized by statute. Cf., M.G.L. c. 93, 5, 6. While the imposition of an agricultural
preservation restriction in the first instance under M.G.L. c. 184, 31 is driven by
economic concerns including price, any authority under the statute ends with the
imposition of the APR. Nothing in the statute or regulations suggest that DAR may step
in and take duly purchased APR land away from a qualified farmer, who has bid for the
land in a fair and competitive auction, in order to control prices.
Similarly, DAR is without authority more generally to exercise an option to purchase
APR land, and then assign it, where the potential assignees are all experienced, qualified
farmers. DARs policy penalizes qualified farmers, who plan bona fide agricultural use,
who are willing to pay a premium for certain parcels of APR land.
The Balance of Harms
Plaintiff owns the building and parking lot next to the Spruce Hill Parcel, which can
only be operated using local produce from the Spruce Hill Parcel or (possibly) other local

sources. Plaintiff Sweet Meadow has committed a $50,000 deposit to the Spruce Hill
Parcel. Plaintiff was high bidder at auction and has planned accordingly, until the DAR
announced its assignment to Allards Farms.
Title to Spruce Hill Parcel has not yet passed, but may do so soon. DAR will
presumably follow through with its exercise of its option and follow through with the
assignment of the option to Allards Farms, which would then obtain title and would have
all right of a property owner to modify the land as it sees fit.
The time to resolve Plaintiff Sweet Meadows claims is now, before title passes.
Neither Allards nor DAR would be unduly prejudiced by a preliminary injunction. A
preliminary injunction would permit the parties to maintain the status quo while DARs
denial of waiver and assignment of its option are adjudicated. Plaintiff Sweet Meadow is
prepared to proceed expeditiously to litigate the parties rights and obligations.
PLAINTIFF, SWEET MEADOW FARM,
LLC,
By:
John E. Garber, BBO No. 635313
jgarber@w-g-law.com
Weinberg & Garber, P.C.
71 King Street
Northampton, MA 01060
(413) 582-6886
fax (413) 582-6881