Opinion
19-P-838
07-08-2020
TRESCA BROTHERS SAND AND GRAVEL, INC., & another v. BOARD OF APPEALS OF WILMINGTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Tresca Brothers Sand and Gravel, Inc. (Tresca), planned to convert an existing warehouse located in the town of Wilmington (town) into a facility that manufactures concrete. The plan also included the storage of component materials necessary to make the concrete, and an exterior truck washout structure. In addition to State permitting, the project required two special permits from the town's board of appeals (board) pursuant to sections 3.6.6. and 6.6.6.7 of the town's zoning bylaw (bylaw). The board denied Tresca's special permit applications in separate decisions, prompting Tresca to file separate appeals in the Superior Court pursuant to G. L. c. 40A, § 17. The cases were consolidated for trial, after which the judge concluded that the board's denials were not reasonably and rationally based on the facts and were arbitrary and capricious. The judge ordered the board to issue the special permits. The board timely appealed. Substantially for the reasons stated by the judge in his detailed and thoughtful decision, we affirm.
Lehigh Northeast Cement Company (Lehigh) is listed on the special permit application as owner of the site and previously operated the site to warehouse and sell cement. In postjudgment submissions to this court, the town's board of appeals contends that Lehigh has sold the property and the new owner asserts that not all of the land shown on the site plan is available to Tresca. Tresca disputes this assertion. This dispute is not properly before us; we review the special permit applications as submitted.
The judge found that in 2009, the Department of Environmental Protection (DEP) approved Tresca's plan for the site. The DEP concluded that the plan was "in conformance with current air pollution control engineering practices."
Tresca initially contended that its proposed use still would be a warehouse, not manufacturing, because although component materials would be put into trucks onsite, the actual manufacturing of concrete would occur in the trucks' rolling drums after the trucks would have left the locus. In a preceding action, a different Superior Court judge found that the proposed use constituted manufacturing and required a special permit under § 3.6.6 of the bylaw.
Discussion. In reviewing the denial of a special permit application, "the court finds the facts de novo and measures the legal sufficiency of the [board's] decision against the court's findings of fact rather than against those found by the board." Tisbury Fuel Serv., Inc. v. Martha's Vineyard Comm'n, 68 Mass. App. Ct. 773, 776 (2007), quoting Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469, 473 n.6 (1988). "In the end, the court must affirm the board's decision unless it finds that denial of the application was 'based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.'" Aiello v. Planning Bd. of Braintree, 91 Mass. App. Ct. 354, 366-367 (2017), quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003). See Wendy's Old Fashioned Hamburgers of N. Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381-382 (2009) (Wendy's).
"Although the judge determines the facts, it is 'the board's evaluation of the seriousness of the problem, not the judge's, which is controlling.'" Wendy's, 454 Mass. at 382, quoting Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 488 (1979). "[S]o long as any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced." Britton, 59 Mass. App. Ct. at 76, quoting Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 356 (2001). "[T]he board's discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Britton, supra at 74-75.
With these principles in mind, we turn to the case at hand.
1. The property and plan. The locus contains approximately 4.4 acres of land located on Eames Street in the town's general industrial district. Most of the locus is surrounded by industrial properties. An active railroad runs along the east and west sides of the locus. The nearest residence is approximately 850 feet away.
The judge found the locus consists of three and one-half acres. Nothing before us turns on the size of the lot.
In the general industrial district, the required setback from a residential abutter is fifty feet.
The locus is also located in a ground water protection district. Currently forty percent of the locus consists of impervious surface; the proposed plan would increase the impervious surface to fifty-nine percent. The town's planning board conducted a site plan review and approved Tresca's site plan with thirty-three special conditions that were binding on Tresca. In reviewing the special permit decisions, the board and the judge considered the locus and its use, as conditioned by the planning board's site plan approval.
Tresca proposed the following plan. Silos housed within a large building would hold the raw materials for making concrete. Admixtures, including chemicals containing toxic qualities which require "proper handling," would be kept in sealed containers inside the building. Trucks would enter the building and would be loaded with the raw materials, and rolling drums inside the trucks would mix the materials into concrete as they traveled offsite. Emissions from the silos, truck loading, and a weigh hopper would be vented to a central dust collection system designed to remove 99.99 percent of particulate.
After delivering the concrete offsite, the trucks would return to the locus. Leftover material would be washed out of the trucks into an exterior washout pit, made of impervious materials, and would drain into a filtration system designed to ensure that no harmful materials would enter the ground water.
Leftover sediment would be removed from the site by truck or reused.
2. The board's decisions. The parties agree that Tresca required both a special permit under § 6.6.7.7 of the bylaw for a use that will render impervious more than fifteen percent, or 2,500 square feet, of any lot in the ground water protection district, and a special permit to conduct a "general manufacturing" use in an industrial zone. General standards applicable to all special permits are contained in § 10.5 of the bylaw and require, among other things, that the board find that "the proposed use is in harmony with the general purpose and intent of the bylaw," and "that the project has been designed to eliminate any significant threat of contamination to the ground water." In making such a determination as to the ground water, § 6.6.8.1 of the bylaw provides that "the SPGA [special permit granting authority] shall give consideration to the simplicity, reliability and feasibility of the control measures proposed and the degree and threat to water quality which would result if the control measures fail."
Pursuant to the table of principal uses and § 3.6.6 of the bylaw, general manufacturing in the town's general industrial district is allowed by special permit provided that "all smoke, odor, particulate matter, toxic matter, fire or explosive hazard, glare, noise and vibration are effectively confined to the premises or disposed in a manner so as not to pose a present or potential hazard to human health, safety, welfare or the environment."
Section 10.5 also requires that the board find "that the use complies with the requirements of [the bylaw]."
With regard to the ground water protection special permit application, the board recited the various requirements of the bylaw (§§ 6.6.1, 6.6.7, 6.6.7.7, 6.6.8.1, 6.6.8.6, and 10.5) and summarily concluded, without explanation, that the application did not satisfy them.
Section 6.6.7.7 of the bylaw, addressing uses that will render impervious more than fifteen percent of a lot, provides that "[a] system for groundwater recharge must be provided which does not degrade groundwater quality. For non-residential uses, recharge shall be by storm water infiltration basins or similar system covered with natural vegetation, and dry wells shall be used only where other methods are infeasible. For all non-residential uses, all such basins and wells shall be preceded by oil, grease, and sediment traps to facilitate removal of contamination. Any and all recharge areas shall be permanently maintained in full working order by the owner." See also § 6.6.6.11. Further, as we have noted, in determining whether the special permit criteria and intent of the bylaw are met, § 6.6.8.1 instructs that "the SPGA shall give consideration to the simplicity, reliability and feasibility of the control measures proposed and the degree and threat to water quality which would result if the control measures fail."
As to the special permit application for a general manufacturing use in an industrial zone, the board set forth the requirements of § 3.6.6. and § 10.5 of the bylaw and summarily concluded, again without explanation, that the application does not satisfy them. The board's only specific findings were regarding noise and traffic. The board found that the proposed plant "would not comply with the DEP sound policy and would more than double noise levels at nearby residences," and that the noise generated "would injure public health and/or unreasonably interfere with the comfortable enjoyment of life, property, or the conduct of business." Additionally, the board found that the sight distance at the entrance on Eames Street would not be "adequate."
3. Judge's findings and rulings. The judge made an independent assessment of the facts and, based on the facts found, ruled that the board's findings were conclusory, arbitrary, and capricious. The documentary record contained Tresca's expert reports, and an expert report commissioned by the board, but no expert witness was offered by the board. The only witness offered by the board was its director of planning & conservation (planning director), who worked with the planning board on the site plan review, but did not work with the board on reviewing the special permits. The judge found that the planning director "presented no testimony to explain or support the . . . board's decisions on the two applications."
Some forty-five exhibits were introduced, consisting primarily of the records amassed during the application and review process.
Tresca called three experts -- an engineer who testified regarding ground water containment and management; a site planner who testified regarding mitigation of dust, particulate, and noise; and a traffic engineer. The experts testified that the proposed plan complied in all regards with the local bylaw. The judge credited the testimony of Tresca's experts.
4. Issues on appeal. We turn to each of the challenges on appeal. The board argues that the judge, in a global manner, ignored applicable legal standards and substituted his judgment for that of the board. To the contrary, the judge expressly noted that although, considering all of the evidence before him, he would have granted the special permits, he recognized that simply because he was persuaded that the facts demonstrated compliance with the zoning bylaw was not enough. Citing Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 475 (2012) (Shirley), the judge recognized that the board was entitled to deny a permit even if the facts found by the court would support its issuance. Yet, the judge also recognized that even this discretionary standard is not above review.
With respect to his legal conclusions, the judge permissibly drew from his factual findings, and relied on the conclusory nature of many of the board's rulings. "When a decision contains conclusions that do nothing more than repeat regulatory phrases, and are unsupported by any facts in the record, we are constrained to conclude that the decision is 'unreasonable, whimsical, capricious or arbitrary,' and therefore invalid." Wendy's, 454 Mass. at 386, quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999). The judge was "not obliged to search for facts in the record to support a rationale that the board did not itself provide." Id. at 387. We review the judge's decision under these standards to determine whether he correctly concluded that no rational view of the facts found by the judge supports the board's conclusions.
a. Ground water. The locus is located in the town's ground water protection district and the town, understandably, was concerned with the project's impact on the ground water. As the judge correctly noted, however, rather than identifying anticipated adverse impacts on the ground water, the board simply recited the requirements of the bylaw sections and concluded that the application did not satisfy them, without making or relying on any factual findings. The judge concluded that the board's failure to cite facts to support its conclusions gave rise to a reasonable inference that the board's decision was arbitrary and capricious. In these circumstances, we agree. See Wendy's, 454 Mass. at 386.
At trial, Tresca's ground water engineer provided detailed evidence as to Tresca's plans to protect the ground water. The judge credited the expert's testimony that there would be no net increase in storm water runoff, and that all impervious areas would be controlled and treated by using hydrodynamic separators to reduce total suspended solids and systems for recharging all storm water into the ground. The board offered no testimony in rebuttal. The judge also found that the plans, when implemented, would not degrade the ground water quality and that they addressed the need for ongoing maintenance in order to avoid future degradation of ground water quality. The judge specifically found that Tresca's plans adequately controlled the potential risks from storing admixtures. He concluded that Tresca satisfied the requirements of §§ 6.6.6.7, 6.6.8.8, and 10.5 of the bylaw.
The record contains a detailed operation and maintenance plan, including estimated costs of maintaining the storm water system.
On appeal, the board emphasizes that fifty-nine percent of the locus will be rendered impervious and that the threshold for the special permit requirement is fifteen percent. The board points to no regulation limiting the total percentage of impervious surface, however, and does not refute the judge's finding that "there will be no run-off and that all water will be properly recharged into ground water." In these circumstances, that fifty-nine percent of the locus will be impervious does not demonstrate that the judge erred in finding that the ground water will not be negatively impacted.
Next, the board argues that the success of the ground water plan requires a "dizzying array of conditions and operation and maintenance routines." The judge, however, credited Tresca's expert's testimony "that the control measures demonstrate simplicity, reliability and feasibility." The board also faulted Tresca for not employing a storm water engineer on staff, instead electing to "incur annual costs to hire an outside contractor to properly inspect and maintain the storm water management system." Again, the board cites to nothing that suggests that an industry standard or any other regulation would be violated by Tresca's staffing decisions. Finally, the board contends additives stored on the premises "could" have damaging effects on the water supply if not properly stored and contained, but does not point to any evidence to cast doubt on Tresca's storage and containment plan. On this record, the judge's determination that there was no basis for the board's conclusion that the proposed plan would not comply with the bylaw's ground water provisions was neither clearly erroneous nor error as a matter of law. See Shirley, 461 Mass. at 475. Cf. Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 246 (1990) (board's refusal to grant exemption unreasonable, whimsical, capricious, arbitrary, and abuse of discretion where based on imperceptible increase in traffic).
Tresca clarified at oral argument that it will not maintain on the site a 20,000 diesel fuel oil storage tank, as that would violate the site plan approval.
b. Noise. The judge found that Department of Environmental Protection (DEP) approval of the project required that noise levels at the facility not create a condition of air pollution and be consistent with the DEP noise policy 90-001. Conditions were imposed to reduce noise pursuant to the planning board's site plan approval, including: limited hours of daily operations; no operations on Sundays and holidays; installation of an eight foot high noise barrier; no tailgate slamming; and use of an alternative to the "beep, beep, beep warning sound for trucks backing up."
When, during the permitting process, a potential competitor of Tresca engaged an engineering firm critical of Tresca's expert's sound study and analysis and opined that the project would exceed DEP limits, the town retained Acentech, Inc., to conduct a peer review of the noise reports submitted to the board for the proposed concrete batch plant. Acentech, Inc., concluded that the project would comply with DEP noise regulations, and that the project "would not increase the background ambient A-weighted noise level by more than 10 dBA" or "produce a 'pure tone' condition at nearby noise sensitive residential areas . . . ." The judge found that the proposed use "[would] not result in an increase of 10 [decibels] or greater and [would] not be a nuisance or a violation of the DEP Noise Policy." The judge found that "[t]he noise from the operation of the plant [would] be confined to the premises sufficiently to satisfy § 3.6.6 of the zoning bylaws," and concluded there was no basis for the board's finding regarding noise.
The board argues that it "is not required as a matter of law to find that noise increases are acceptable merely because they do not violate the DEP standard for an air quality permit." The board, however, relied on the DEP standard in its denial of the special permit and the case was tried relative to the DEP standard. The focus of the testimony and exhibits as to noise at trial was on meeting DEP requirements. The judge's conclusion that Tresca successfully demonstrated that the project would comply with DEP limits was well supported by the evidence, and the argument to dispense with this standard may not be raised for the first time on appeal. See Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314, 318 n.13 (2005).
Neither Acentech, Inc., nor any of the experts discussed any local requirements that were different from DEP requirements.
The board contends that the mitigated increase in noise will be 7.8 decibels and cites to Land Court cases where experts had testified that an increase in noise of 7.8 decibels lies somewhere between "noticeable" and "roughly double in volume." The board, however, made no effort at trial to establish a basis for comparison of the facts of those cases with the facts here, and cites to no authority for the proposition that we may rely on expert evidence in another, unrelated case. Further, the board does not demonstrate how, even if true, a doubling of the ambient sound would be perceived at the closest residence or other businesses. The ambient noise levels were tested on a Saturday morning between 6:00 and 7:00, the quietest time of the day, and nothing in the record suggests that even doubling the ambient noise at that time would disturb the closest residential neighbor 850 feet away. The evidence simply did not provide any basis for concluding that noise associated with the plans would "injure public health and/or unreasonably interfere with the comfortable enjoyment of life, property, or the conduct of business." We discern no error in the judge's conclusion that the board's denial of the special permit on the basis of noise was unsupported by the evidence as found by the judge.
c. Traffic. The judge found that once the vegetation clearing required by a condition of the site plan approval was completed, minimal and even "desireable" sight distances would be met if the vehicles on Eames Street were not traveling over the posted speed limit, and the minimum requirements would be met even when traffic exceeded the speed limit. The judge found that "there are no material adverse traffic effects as a result of Tresca's proposed concrete batching operation." Finally, the judge concluded that the Eames Street entrance met accepted industry standards, was "adequate for the proposed use of the site," and that "[t]here [was] no evidence to the contrary."
Minimum requirements for sight distances were derived from the American Association of State Highway and Transportation Officials.
On appeal, the board argues that although the Eames Street entrance sight distance meets minimal requirements, the board may exercise its discretion to require the higher "desirable" standard. In arguing it was entitled to require the "desirable" standard, the board relies on a statement from a report of the board's peer review expert asserting that even though meeting the minimum recommended stopping sight distance requirements would allow a vehicle on Eames Street to stop without colliding with an exiting vehicle from the site, "it is preferable to provide additional [sight distance] to allow a vehicle to exit the site without significantly slowing traffic on Eames Street." In a later analysis, however, the same peer review expert's final opinion was that with minor clearing or trimming of vegetation (an accepted condition contained in the approved site plan), the access exceeded both the minimum and desirable recommended "stopping sight distance[s]" and "intersection sight distance[s]" for all vehicle types.
Moreover, the evidence credited by the judge established that meeting minimal standards eliminated collision concerns. While it is true that vehicles exceeding the speed limit on Eames Street might have to slow down, there has been no showing that such a reduction in speed to comply with the posted speed limit would create a traffic or safety concern. If reasonable minds could differ as to the adequacy of the sight distances, we would defer to the board's judgment; but in the absence of any nonspeculative safety or traffic impacts arising from speeding vehicles having to reduce their speed when approaching the Eames Street entrance, we discern no error in the judge's conclusion that the entrance sight lines are adequate and no traffic-related issue justifies denial of the special permit.
d. Discretionary denial. Having determined that the judge permissibly concluded that the reasons relied on by the board to deny the special permits are not supported by the factual record, we consider whether the board nonetheless was entitled to exercise its discretion and deny the permits. In Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871, 874 (2015) (Buccaneer), we rejected "the board's argument on appeal that it properly based its denial of the special permit on traffic congestion, crash data, or pedestrian safety." Nonetheless, we affirmed the denial of the special permit because we discerned no abuse of discretion in the board's discretionary determinations that the proposed use was not "(a) . . . in harmony with [the bylaw's] general intent and purpose; (b) . . . essential or desirable to the public conveniences or welfare at the proposed location; [and was] (c) . . . detrimental to adjacent uses or to the established or future character of the neighborhood." Id. at 875. In Buccaneer, however, the board articulated the manner in which the proposed use would significantly alter the immediate vicinity and substantially change the appearance and feel of the area. Id. at 876. In this case, a general manufacturing use is proposed in an industrial zone. The board relied only on its noise, traffic, and ground water findings -- rejected by the judge -- to support its conclusion that the use is not in harmony with the purpose of the bylaw. The board made no additional findings. The board may not conclude the proposed use is not in harmony in the absence of credible evidence. See Shirley, 461 Mass. at 485 (board "may not conclude that an expansion will be substantially more detrimental to the neighborhood in the absence of credible evidence").
e. Remedy. Finally, at oral argument, the board asserted that the case should be remanded to the board so that it can impose conditions. The board has failed to articulate any conditions it seeks to impose beyond those already imposed by the planning board under the site plan review. We discern no reason to remand for this reason. See Wendy's, 454 Mass. at 382-383.
Judgments affirmed.
By the Court (Sullivan, Henry & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 8, 2020.