Robert Duffy v. Town of Berwick, 2013 ME 105

Background

Berwick Iron & Metal Recycling sought a conditional use and site-plan permit to install and operate a metal shredder at its existing recycling facility; the shredder would be powered by a large diesel engine and emit exhaust and noise.
Abutting landowners objected, citing air emissions, noise, and shredder residue; the Planning Board held hearings, site walks, and requested technical studies.
The Board received competing noise and air-emissions studies from Berwick Iron and the abutters and hired a peer reviewer (paid by Berwick Iron) after soliciting estimates; the Planning Coordinator emailed Berwick Iron’s counsel about the choice without notifying the abutters.
The Board approved the permit (after a public remand and additional hearings and an open site walk); the Superior Court twice vacated the Board’s decision, finding due-process violations from ex parte communications and errors in applying the town’s air-emissions ordinance.
The Supreme Judicial Court reviewed whether the ex parte email and related process infected the Board’s decision and whether the Board correctly interpreted and applied the town ordinance on air emissions and noise.

Issues

Issue	Plaintiff's Argument (Abutters)	Defendant's Argument (Berwick Iron / Board)	Held
Whether ex parte communications (emails and nonpublic contacts) violated abutters' due process	Email/contacts denied abutters notice and opportunity to respond; tainted the process	Contacts were limited, Board had already selected reviewer, abutters later had full opportunity to respond at public hearings	No reversible due-process violation; email was not sufficiently prejudicial and abutters had opportunity to respond
Whether Board erred by relying on state/federal air-quality standards instead of the stricter town ordinance (Section 7.1)	Board improperly relied on federal/state standards; ordinance imposes an independent, stricter prohibition on injurious or enjoyment-diminishing emissions	Federal/state standards regulate similar harms and evidence showed compliance; Board made independent findings supported by record	Board did not err; federal standards were analogous and support the Board's findings, and record contains competent evidence the project met Section 7.1
Whether the Board made adequate findings that emissions were not injurious or detrimental	Abutters argued Board failed to make specific factual findings that emissions wouldn’t be injurious or impair enjoyment	Board relied on DEP permit, conservative modeling, and peer reviewer conclusions that other emissions would be minimal	Held that Board’s findings are supported by competent evidence (DEP permit, conservative assumptions, peer review)
Whether the Board erred in concluding noise levels comply with ordinance (Section 7.6)	Live testing showed exceedance of 60 dB at neighbor; noise should be measured where heard (residential limit applies)	Exceedance was a single daily shutdown spike within the 15-minute allowable exception; Board found compliance	Board’s conclusion upheld: evidence supports finding the project meets the 60 dB standard with the allowable brief exception

Key Cases Cited

Malonson v. Town of Berwick, 853 A.2d 224 (Me. 2004) (standard of review for local board decisions)
Lane Constr. Corp. v. Town of Washington, 942 A.2d 1202 (Me. 2008) (procedural fairness and ex parte communications)
Gorham v. Town of Cape Elizabeth, 625 A.2d 898 (Me. 1993) (due-process entitlement to fair and unbiased hearing)
Cunningham v. Kittery Planning Bd., 400 A.2d 1070 (Me. 1979) (flexible due-process requirements for municipal boards)
Pelkey v. City of Presque Isle, 577 A.2d 341 (Me. 1990) (members must hear evidence to participate in decision)
Mutton Hill Estates, Inc. v. Town of Oakland, 468 A.2d 989 (Me. 1983) (ex parte communications and public access concerns)
Nestle Waters N. Am., Inc. v. Town of Fryeburg, 967 A.2d 702 (Me. 2009) (deference to board factfinding; vacatur only if no competent evidence)