Greater Lawrence San. Dist. v. N. Andover

• Citation: 439 Mass. 16,785 N.E.2d 337
• Parties: GREATER LAWRENCE SANITARY DISTRICT v. TOWN OF NORTH ANDOVER & others.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 20 March 2003
• Court: United States State Supreme Judicial Court of Massachusetts

785 N.E.2d 337

439 Mass. 16

GREATER LAWRENCE SANITARY DISTRICT v. TOWN OF NORTH ANDOVER & others.¹

Supreme Judicial Court of Massachusetts.

Argued January 7, 2003.

Decided March 20, 2003.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Kimmell, Boston (Elizabeth M. Heller with him) for Town of North Andover.

William H. DiAdamo for Greater Lawrence Sanitary District.

The following submitted briefs for amici curiae:

Thomas F. Reilly, Attorney General, & Kirsten H. Engel, Assistant Attorney General, for Department of Environmental Protection.

Thomas P. Crotty, New Bedford, for Carver Marion Wareham Regional Refuse Disposal District.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

IRELAND, J.

The plaintiff, Greater Lawrence Sanitary District (GLSD), and the defendants, the town of North Andover, its board of health, and its board of selectmen (town), appeal from a Superior Court judge's award of summary judgment ordering, inter alia, (1) that the town does not have authority to impose any conditions on GLSD's sludge treatment facilities; and (2) that a permanent injunction issue, restraining the town from interfering with or attempting to exert authority over GLSD. The town claims that the judge erred in concluding that it did not have authority to impose antinuisance conditions on the operation of the sludge treatment facilities. GLSD also appeals, contending that it is entitled to a refund of the building permit fee. We granted the parties' applications for direct appellate review. Because we conclude that the doctrines of essential governmental functions and preemption limit, but do not completely prohibit, the town from imposing antinuisance conditions, we vacate the judgment of the Superior Court and remand the case for further proceedings consistent with this opinion. In addition, we reject GLSD's claim for a refund to the extent that it is based on the premise that the town lacks authority to issue a building permit. However, the record is inadequate to decide whether GLSD is contractually entitled to such a refund.

I. Background.

We take our facts from the judge's memorandum of decision, supplemented by undisputed facts in the record. GLSD established by the Legislature in 1968, is a body politic and corporate responsible for planning, building, and operating facilities to treat wastewater of its member communities. St.1968, c. 750, §§ 2, 3, 5. The district is comprised of the city of Lawrence, the towns of Methuen, Andover, North Andover, and (by contract) Salem, New Hampshire. St.1968, c. 750, as amended by St.1982, c. 387. In 1977, GLSD began receiving wastewater, and disposed of the resulting sludge through the use of on-site incinerators.² Eleven years later, the Commonwealth shut down the sludge incinerators because of odor and water pollution problems, and the Attorney General filed suit against GLSD under the Massachusetts Clean Waters and Clean Air Acts. As a result, the parties entered into an agreement that required GLSD to update and improve its facilities to meet Federal and State requirements.

Since 1988, GLSD has employed various short-term remedies for the transportation and disposal of wastewater sludge, none of which is appropriate as a permanent solution. The Legislature, in 1997, authorized GLSD to enter into contracts for the design, construction, and operation "of an on site biosolids processing facility," and the "disposal and beneficial use of sludge related thereto." St.1997, c. 213, § 1. By 1998, GLSD developed a plan for the construction and operation of facilities to improve sludge thickening and dewatering, reduce disease-causing organisms in the sludge (referred to as pathogens), and control odors (contract I facility). The report also suggested the use of a thermal drying facility for the treated sludge (contract II facility), which would produce an end product that would be sold as fertilizer pellets. In February, 1999, GLSD awarded the contract II facility to the New England Fertilizer Company (NEFCO). Both the contract I and II facilities have been approved by the Department of Environmental Protection (department), the town's conservation commission, and the Federal Aviation Administration.³

During the planning and development of the facilities, the town requested, among other things, that GLSD apply for a site assignment pursuant to G.L. c. 111, § 143,⁴ and that it pay a $200,000 building permit application fee. In an effort to resolve the intense disagreement over the town's authority to regulate the projects, GLSD and the town executed a memorandum of understanding (initial MOU) in March of 2000. Although the initial MOU acknowledged the parties' opposing positions with respect to the town's authority to regulate the proposed facilities, it provided a process for the town and its board of health (board) to review the environmental, public health, and safety impacts of the facilities.

By June 18, 2000, the town issued building permits for the contract I and II facilities. However, both permits contained statements that the board might still disapprove the facilities, or impose conditions on the construction or operation of the facilities. On June 19, 2000, the board voted to approve the contract I facility but not the contract II facility.

GLSD commenced this action in July, 2000, seeking declaratory and injunctive relief. In essence, the seven-count complaint sought a determination that the town violated the initial MOU, and that GLSD is immune from all town regulation concerning the contract I and II facilities, including site assignment, building permits, and any conditions regarding the construction or operation of the facilities. GLSD filed a motion for summary judgment in September, 2000, and a hearing on the motion was scheduled for that same month.

According to the parties, the board rescinded its vote disapproving the contract II facility shortly after the summary judgment hearing. The parties further allege that the board issued an order in November, 2000, which it called "the final MOU," imposing numerous conditions with respect to air quality, odors, noise, and traffic generated by the operation of the contract I and II facilities. Although the judge issued his memorandum of decision more than one year after hearing the motion for summary judgment, that decision did not reference that the board had rescinded its vote to deny the site assignment and had instead ordered numerous conditions on the facilities' operation.⁵ In holding that the department had sole authority to issue site assignments, the judge broadly concluded that GLSD was immune from all local regulation. The judge ordered the building inspector to issue another building permit for the contract II facility "without any conditions," and ordered that a permanent injunction issue restraining the town from "interfering with or attempting to exert authority over GLSD." The town appeals from the broad ruling that the town does not have authority to impose any conditions on the facilities.⁶ GLSD argues that, because the judge held that GLSD is immune from local regulation, he should have concluded that GLSD did not need a building permit and should have ordered the town to refund the permit fee. GLSD further contends that it is entitled to a refund of the building permit fee under the terms of the initial MOU.

II. Discussion.

"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974). "An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law." Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536, 600 N.E.2d 571 (1992), citing Community Nat'l Bank v. Dawes, 369 Mass. 550, 556, 340 N.E.2d 877 (1976). Because we conclude that the Superior Court judge erred as a matter of law in ruling that the town does not have authority to impose conditions on the proposed wastewater facilities, we vacate the grant of summary judgment.

A. The town's authority to impose conditions. The antinuisance conditions that the board seeks to impose relate to dust control and blasting, odor, noise, traffic, and miscellaneous other aspects of the facilities' operation.⁷ The judge concluded that the town did not have authority to impose any conditions on the contract I and contract II facilities because (1) the department has plenary authority over the granting of site assignments for wastewater treatment facilities, and (2) GLSD is a legislatively created body performing an essential government function and therefore is immune from municipal regulation.. The town contends that the judge erred in concluding that the doctrines of preemption and immunity constitute an absolute prohibition on the town's ability to impose conditions on the facilities to prevent nuisance conditions. We agree.

The doctrine of essential governmental functions prohibits municipalities from regulating entities or agencies created by the Legislature in a manner that interferes with their legislatively mandated purpose, absent statutory provisions to the contrary. See Bourne v. Plante, 429 Mass. 329, 332, 708 N.E.2d 103 (1999), quoting County Comm'rs of Bristol v. Conservation Comm'n of Dartmouth, 380 Mass. 706, 710, 405 N.E.2d 637 (1980). "The scope of the immunity is broad and [extends] to leased property and facilities." Id. at 713, 405 N.E.2d 637. It also applies to entity actions that are "reasonably related" to fulfilling the entity's essential governmental function. Bourne v. Plante, supra, citing Village on the Hill, Inc. v. Massachusetts Turnpike Auth., 348 Mass. 107, 118,...