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Town of Chelmsford v. Newport Materials, LLC

Superior Court of Massachusetts, Middlesex

September 6, 2017

Town of Chelmsford [1] et al. [2]
Newport Materials, LLC et al. [3]


          Kathe M. Tuttman, Justice

         The Town of Chelmsford (" Chelmsford" ) and its fire chief, Gary Ryan (" Chief Ryan" ), bring this appeal pursuant to G.L.c. 40A, § 17, challenging a decision by the Town of Westford (" Westford" ) and the Westford Planning Board (the " Board" ) granting defendants Newport Materials, LLC and 540 Groton Road, LLC (collectively, the " Newport Parties" ) special permits for the construction and operation of an asphalt manufacturing plant (the " Project" ) on a piece of property located in Westford, near the Chelmsford line (the " Property" ). The matter is now before the court on the Newport Parties' motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(1) based on the plaintiffs' alleged lack of standing, as well as Mass.R.Civ.P. 12(b)(6). Because the court agrees that the plaintiffs lack standing to bring this appeal, the Newport Parties' motion to dismiss is ALLOWED.[4]


         The Newport Parties own the Property, which is located at 540 Groton Road, in Westford, Massachusetts. The Property is an industrially-zoned, 115.52-acre lot. Ninety-two of those acres are in Westford, while the remaining twenty-three are in Chelmsford. The location of the proposed Project is entirely within the Westford portion of the Property. The Newport Parties do not propose to alter any portion of the Property located in Chelmsford.

         There is no allegation that Chelmsford itself owns land abutting the Property. The Property is abutted on the west by the Fletcher Quarry, an active and operational quarry since the 1800s that has no objection to the Project; on the south by Route 40; on the north by vacant industrial land; and on the east by U.S. Route 3, industrial properties and a single residence located at 263 Groton Road in Chelmsford. None of the abutting industrial properties, nor the owner of the single residence, is a party to any litigation involving the Project.

         In 2009, the Newport Parties filed applications with the Board seeking the special permits necessary to operate an asphalt manufacturing plant on the Property. Seven years of administrative proceedings and litigation between the Newport Parties, Westford, and the Board followed. The central issue in dispute was whether the Project qualified as " light manufacturing" as defined by the Westford Zoning Bylaw (the " Bylaw" ).[5] After the Board denied their initial applications, the Newport Parties appealed to the Land Court, which remanded the matter back to the Board. After further unfavorable proceedings before the Board and the Westford Zoning Board of Appeals, the Newport Parties appealed again to the Land Court. This time, the Newport Parties, Westford, and the Board entered into mediation and were able to reach a settlement. The settlement resolved the litigation and required the issuance of a Special Permit for Major Commercial Project (" MCP special permit" ), which the Board had previously voted against, subject to numerous conditions. On September 27, 2016, the Newport Parties, Westford, and the Board signed a settlement agreement and filed an Agreement for Judgment with the Land Court that incorporated an MPC special permit for the proposed project and the settlement agreement. The Land Court issued an Order Allowing the Agreement for Judgment to Enter subject to certain modifications on October 24, 2016, and issued a Revised Order which entered the Agreement for Judgment as originally filed by the parties on November 9, 2016. As required by the Revised Order, Westford filed the MCP special permit with the Westford Town Clerk on November 14, 2016.

         The MCP special permit states that the project will include " a hot mix asphalt (HMA) drum mix plant, a hot oil heater, oil and asphalt storage tanks and a rock crushing plant." According to the MCP special permit, components of the asphalt plant operation will include, among other things: four 200-ton silos (sixty-eight feet in height) that allow the hot asphalt to load into trucks that pull underneath; a tank farm with two 30,000-gallon indirect fired asphalt cement vertical tanks with unloading pumps (thirty-six feet in height); a HYCGO Gencor 100 hot oil heater with expansion tank stand; two 31,000-gallon fire cisterns; and one 10,000-gallon above-ground storage tank for Number 2 fuel oil.

         Condition 5 of the MCP special permit, entitled " Fire and Life Safety and Hazardous Materials," imposes twenty-one specific safety-related conditions on the Newport Parties. Among other things, it requires the Newport Parties to provide: a foam cart on the Property throughout the lifetime of the operation of the plant, for firefighting purposes; " OSHA's confined space training for the Westford and Chelmsford Fire Department staff on an annual basis and . . . re-certification for Westford and Chelmsford employees as needed over the lifetime of the asphalt plant's operation" ; " a detailed briefing to representatives of the Westford and Chelmsford Fire Departments, as designated by the respective Fire Chiefs, with regard to spill containment procedures" ; and access for the Westford and Chelmsford fire chiefs to " conduct an inspection of the plant on an annual basis" relating to such spill containment procedures. The plaintiffs' complaint alleges that neither Chelmsford nor its fire department was contacted by the defendants regarding either the imposition of the condition requiring briefings on spill containment procedures or the additional training. Condition 5 does not, however, unilaterally impose obligations on the Chelmsford Fire Department (which was not a party the settlement) to attend these trainings and briefings; it only imposes obligations on the Newport Parties to " provide" them.

         The plaintiffs allege that the Project is inherently dangerous and poses a risk of fire because it will involve the use and storage of highly flammable and explosive materials, and that Chelmsford may be called to provide emergency aid to Westford should a fire occur. Chelmsford and Westford, along with sixteen other communities, are signatories to the District 6 Fire Chief's Association Mutual Aid Agreement for Joint Fire, Rescue and Ambulance Service (the " Mutual Aid Agreement" ), dated July 1, 2008. While the plaintiffs' complaint alleges that the Mutual Aid Agreement " requires Chelmsford to provide support as needed" in emergencies, the Mutual Aid Agreement itself is not so explicit. It does not specifically state the circumstances under which Chelmsford would be called to assist Westford or whether Chelmsford is the first of the seventeen other signatories to be called when Westford needs assistance. The Mutual Aid Agreement provides that " [a]ssistance shall be rendered according to the procedures set forth in the Operational Plan developed and agreed to by all parties to this agreement," but the Operational Plan is not included in the exhibits before the court and its terms are not otherwise described in the pleadings. According to the complaint, mutual aid responses by the Chelmsford Fire Department to Westford have increased significantly in the past two years, with five responses in 2013, two in 2014, thirteen in 2015, and at least thirteen in 2016. Although the allegations of the complaint are not entitled to a presumption of truth or even to be viewed in the light most favorable to the plaintiffs (see infra ), for purposes of this motion, the court assumes that Chelmsford has provided assistance to Westford pursuant to the Mutual Aid Agreement as described in the complaint and will continue to do so in the future.


         A. Standard of Review

          A motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(1) for lack of standing (or other lack of subject matter jurisdiction) may be based solely on the facts alleged in the complaint or on additional evidence submitted by the moving party. If the motion is not supported by additional evidence, it " presents a 'facial attack' based solely on the allegations of the complaint" and the court must assume the truth of those allegations for the purpose of deciding whether it has subject matter jurisdiction to hear the plaintiff's claim. Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 709, 808 N.E.2d 301 (2004), quoting Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 516 n.13, 773 N.E.2d 929 (2002). If, however, the moving party submits " documents and other materials outside the pleadings" in an attempt to " contest the accuracy (rather than the sufficiency) of the jurisdictional facts pleaded by the plaintiff," the court must " address the merits of the jurisdictional claim by resolving the factual disputes between the plaintiff and the defendants." Id. at 710-11. Where the defendant makes such a " factual challenge," the factual allegations in the complaint are not presumed to be true, id. at 711, and the evidence submitted regarding subject matter jurisdiction is " not viewed in the light most favorable to the non-moving party." Wooten v. Crayton, 66 Mass.App.Ct. 187, 190 n.6, 845 N.E.2d 1213 (2006).

         Here, the defendants attach several exhibits to their motion, thus presenting a " factual challenge" to the plaintiffs' jurisdictional allegations. As a result, the allegations of the complaint are not entitled to a presumption of truth and the evidence submitted in connection with the motion need not be viewed in the light most favorable to the plaintiffs. In this case, however, even if the court were to limit its analysis to the allegations of the complaint and presume them to be true, the court would reach the same conclusion that the plaintiffs lack standing to pursue their claims.[6]

         B. Standing under ...

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