Heard: November 7, 2018.
Special permit, Automobile repair shop, Timeliness of appeal,
By-law. Practice, Civil, Zoning appeal, Burden of proof.
Environment, Air pollution.
action commenced in the Superior Court Department on December
8, 2014. The case was heard by Gary A. Nickerson, J., and a
motion to amend judgment was considered by him.
Christopher G. Senie for the plaintiffs.
Shannon Dunn Resnick for the Accidental Auto Body, Inc.,
Present: Agnes, Blake, & Neyman, JJ.
November 20, 2014, the zoning board of appeals of Mashpee
(board) granted the application of Accidental Auto Body, Inc.
(Auto Body), for a special permit allowing it to construct an
auto body shop on property located in the economic
development and industrial corporation area of the town of
Mashpee's (town's) industrial zoning district. The
plaintiffs, residential abutters of the locus who claimed
harm from potential air pollution and noise impacts,
appealed to the Superior Court pursuant to G. L. c. 40A,
§ 17, in an effort to overturn the decision. Following a
trial, a judge affirmed the board's decision. The
plaintiffs now appeal from the judgment, asserting that Auto
Body did not meet its burden under the town's bylaw
(bylaw) to prove that the plaintiffs would not be harmed by
chemicals released into the air. For the reasons that follow,
we conclude that the board and the judge erred in determining
that Auto Body complied with § 174-24(C)(2) of the
bylaw, which imposes on the party seeking a special permit
the burden to establish that "the proposed use . . .
will not adversely affect public health or safety . . . [and]
will not significantly decrease . . . air quality."
Accordingly, we vacate the judgment.
the facts from the judge's findings and undisputed
testimony, noting where the plaintiffs contend they are
clearly erroneous. Auto Body proposed to build a 9, 000
square foot building approximately seventy-four feet away
from the plaintiffs' northern boundary
line. Auto Body's work will include
painting of repaired vehicles, generally requiring two layers
of top coat which contain isocyanates. Isocyanates are a
"useful" but "harmful" molecule. In
contrast to the water-based preliminary coats of paint, which
cannot withstand moisture, water, and sunlight, the
carbon-based isocyanates in the top coats create bonds that
are almost indestructible and ensure a durable finish.
coats and base coats will be applied by spray in a paint
booth, "a fully enclosed structure within the auto body
shop building." The judge found, as the plaintiffs'
expert conceded, that Auto Body proposes to use the best
available filter system and to locate the vent as far away
from the plaintiffs' properties as
possible. Nonetheless, the judge found that two
percent of the isocyanates will escape with the exhaust. He
also found that although isocyanates are unstable, they are
rendered harmless within minutes after they become airborne.
These findings of fact are consistent with the testimony of
one of the plaintiffs' expert witnesses, Dr. William
Sawyer, a professional toxicologist. '  The judge did
not credit the testimony of the plaintiffs' expert that
it would not take five minutes for the isocyanates to reach
the plaintiffs' property, or that the isocyanates very
likely would present health risks. Auto Body offered no
testimony, expert or otherwise, on the issue whether
isocyanates would reach the plaintiffs' property and, if
so, whether the isocyanates would be rendered harmless before
they reach the plaintiffs' property.
judge noted that the plaintiffs' expert, "a well
credentialed toxicologist familiar with the dangers posed by
isocyanates, . . . shed little light on the pertinent
question as to what harmful effects the plaintiffs might
suffer." The judge determined that, although
"Sawyer stated that anyone directly breathing the fumes
coming out of a painting booth during the application of a
top coat may be harmed unless wearing a respirator[, he]
offered little credible insight as to how such fumes disperse
and travel once ejected into the open atmosphere; that being
outside his area of expertise."
judge took judicial notice of State and Federal regulations,
see infra, and noted that "[t]he potential
harmful effect of auto body paint fumes is well known and
thus the industry must meet [F]ederal [Environmental
Protection Agency (EPA)] and [S]tate [Department of
Environmental Protection (DEP)] standards." The judge
asked the plaintiffs' expert whether State and Federal
regulations are sufficient to protect the plaintiffs. The
expert responded that they were not. He stated, "No. And
neither is that [true] in EPA's opinion. If you actually
look at the automotive finishing industry toxicology profile,
the problem they point out is that the isocyanates . . . are
not captured in the filter. The monomers . . . go through.
And . . . that's the problem."
concluding that the special permit was properly granted, the
judge reasoned that (1) isocyanates, though dangerous, are
widely used in industry "without detriment to health and
safety so long as appropriate precautions incorporated in the
[Federal and State] regulations are followed," (2)
"[t]here are no EPA or DEP regulations as to the
required distance between a paint booth exhaust pipe and
residential structures," (3) Auto Body's
"Hyannis facility is in a mixed use area with homes
adjacent to the facility and no history of harmful effects
despite [Auto Body's] use at that site of both topcoat
and undercoat paints containing isocyanates," (4) in
this case the fumes would be vented from a location
"from the north end of the shop, further away from the
[plaintiffs'] homes," and (5) neither Federal nor
State environmental regulations require an air modeling
study, as recommended by Sawyer, before permitting an auto
body painting facility, and it is "prudent to rely on
the regulatory process governing auto repair shops (both EPA
and DEP) 11
to ensure [Auto Body's] shop will not significantly
decrease air quality and thus will not adversely [affect]
public health. This court hastens to add that [Auto
Body's] embrace of the industry's best practices
further supports this conclusion." The judge added that
the "plaintiffs purchased homes adjacent to an active,
growing industrial area" and "[s]ignificant adverse
impact must be seen through that lens, which compels the
answer that there is none."
of the appeal.
initial matter, Auto Body contends that the plaintiffs'
appeal is untimely. Judgment entered on December 13, 2017.
Within ten days, on December 20, 2017, the plaintiffs filed a
notice of intent to file a motion to alter the judgment. See
Rule 9E of the Rules of the Superior Court (2004) .
Thereafter, the plaintiffs filed a motion to amend the
judgment, together with an affidavit of no opposition, on
January 5, 2018. Auto Body does not contend that the motion
to amend was not served within ten days, as required by Mass.
R. A. P. 4 (a), as appearing in 481 Mass. 1606 (2019). The
motion is not contained in the record appendix, and thus we
cannot ascertain the basis or bases of the motion and the
exact rule under which the plaintiffs proceeded. The result