Fish v. Accidental Auto Body, Inc.
125 N.E.3d 774
Mass. App. Ct.2019Background
- Auto Body applied for and the Mashpee Zoning Board granted a special permit for an auto body shop with a paint booth using isocyanate-containing top coats; plaintiffs are nearby residential abutters who appealed under G. L. c. 40A § 17.
- The paint booth is enclosed with filters; the judge found filters trap ~98% of particulates but that ~2% of isocyanate monomers would escape and remain hazardous for up to five minutes after release.
- Plaintiffs’ expert (Dr. Sawyer) testified isocyanate monomers are highly toxic, not captured by filters, can cause respiratory disease at very low concentrations, and recommended an air dispersion/risk assessment.
- Auto Body presented no air dispersion modeling or expert proof that escaped monomers would not reach plaintiffs’ property or would be harmless if they did; relied on use of best practices and compliance with EPA/DEP regulations.
- The Superior Court affirmed the board, reasoning compliance with federal/state regulations and industry best practices (and relocating the exhaust away from plaintiffs) supported finding no significant decrease in air quality.
- The Appeals Court vacated the judgment, concluding the applicant bore the burden to prove the permit criteria in the town bylaw (public health/safety and air quality) and that Auto Body failed to discharge that burden with evidence specific to off-site impacts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of appeal | Notice of appeal timely because post-judgment motion tolled appeal period | Appeal should have been filed from original judgment | Held timely: motion to amend restarted appeal period and plaintiffs’ appeal was timely |
| Burden of proof on special permit appeal | Auto Body (applicant) must prove proposed use will not harm public health or air quality under local bylaw | Board/Auto Body argued reliance on compliance with EPA/DEP and absence of contrary evidence suffices | Held for plaintiffs: burden rests on applicant and board to produce evidence showing no adverse health/air‑quality impact; judge improperly shifted burden to plaintiffs |
| Sufficiency of evidence re: air impacts | Sawyer: unchallenged modeling-level figures and toxicology show likely hazardous off-site concentrations; recommended risk assessment | Auto Body: use of best available filters, regulatory compliance, experience at other facility, and vent location suffice | Held for plaintiffs: Auto Body produced no evidence that escaped monomers would not reach or harm neighbors; reliance on general regulatory compliance and best practices was legally insufficient |
| Reliance on regulations and site context | Plaintiffs: compliance with regs may be insufficient given known hazards; proximity to residences matters | Auto Body/board: federal/state regulations and industrial context justify permit; relocating vent mitigates risk | Held for plaintiffs: court cannot assume regulatory compliance or vent location obviates need for site-specific proof when judge found hazardous emissions could occur |
Key Cases Cited
- Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 (2012) (standard of review: judge makes independent factual findings but gives deference to board’s reasonable bylaw interpretation)
- Kirkwood v. Board of Appeals of Rockport, 17 Mass. App. Ct. 423 (1984) (on appeal the applicant and board bear burden to show statutory prerequisites for a special permit are met)
- Knott v. Zoning Bd. of Appeals of Natick, 12 Mass. App. Ct. 1002 (1981) (party seeking a variance or special permit bears burden to go forward and ultimate burden of persuasion)
- Stivaletta v. Zoning Bd. of Appeals of Medfield, 12 Mass. App. Ct. 994 (1981) (burden on applicant to prove proposed use will not endanger health and safety under local bylaw)
- Bateman v. Board of Appeals of Georgetown, 56 Mass. App. Ct. 236 (2002) (board decision may be disturbed only if based on legally untenable grounds or is arbitrary)