Attleboro Sand & Gravel Corp. v. City of Attleboro

• Decision Date: 11 December 2019
• Docket Number: 18-P-1551
• Citation: 139 N.E.3d 778 (Table),96 Mass.App.Ct. 1112
• Parties: ATTLEBORO SAND & GRAVEL CORP. v. CITY OF ATTLEBORO.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 1112

139 N.E.3d 778 (Table)

ATTLEBORO SAND & GRAVEL CORP.

v.CITY OF ATTLEBORO.

18-P-1551

Appeals Court of Massachusetts.

Entered: December 11, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Attleboro Sand & Gravel Corp. (ASG), challenges the declaratory judgment by a judge of the Land Court determining that an asphalt plant is not a permitted use in the city of Attleboro's (Attleboro's) industrial business park (IBP) district under the Attleboro zoning ordinance in effect before June 4, 2015 (ordinance). We affirm.

1. Background. In 1994, Attleboro created its IBP district, a zoning district intended to promote "environmentally-sound" industrial and business development "in a park-like setting." The site is adjacent to an area zoned for and used as residential property and, as we discuss infra, is regulated by the ordinance.

ASG has for decades operated a quarry, a stone processing plant, and a ready-mix concrete plant on a site in Attleboro, the majority of which became part of the IBP district upon the district's creation. In January 2013, ASG devised a plan for construction of a new asphalt plant on the site and, in 2013 and 2014, Attleboro approved its form A plan application for the new plant² and issued special permits related to the plan. In September 2014, ASG filed suit under G. L. c. 240, § 14A, and G. L. c. 231A, § 1, seeking a declaration that the planned asphalt plant was permitted as of right in the IBP district.³ Finding that under the ordinance ASG's proposed use of the site was neither "[p]rocessing and [t]reating" raw materials nor "[l]ight [m]anufacturing," the Land Court judge ruled that ASG's proposed use was prohibited in the IBP district. ASG argues that the judge misinterpreted the ordinance.

2. Discussion. a. Standard of review. We review the interpretation of a zoning ordinance de novo, Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 567 (2014), looking to the plain language of the ordinance in order to determine the legislative intent motivating its adoption. See Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 729 (2013) ; Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012). Traditional canons of statutory construction guide our review. See Doherty, supra. Where, as here, "the meaning of the language is plain and unambiguous," we interpret the ordinance according to its plain wording, striving "to give effect ‘to all its provisions, so that no part will be inoperative or superfluous.’ " Shirley Wayside Ltd. Partnership, supra, quoting Connors v. Annino, 460 Mass. 790, 796 (2011).

b. The ordinance. The ordinance permits certain uses by right within the IBP district, including, relevant to this dispute, "Processing and Treating of Raw Materials" (hereinafter, processing and treating) and "Light Manufacturing, Assembling and/or Processing of Manufactured Products" (hereinafter, light manufacturing), and prohibits others, including "Heavy Manufacturing, Assembling and/or Processing of Manufactured Products" (hereinafter, heavy manufacturing).⁴ The ordinance defines "light manufacturing," but does not define "processing and treating." As to undefined terms and words, § 17-11.1 of the ordinance provides guidance: if not defined in the ordinance, but defined in the Massachusetts State building code (building code) "unless a contrary intention clearly appears," the words are given the meanings assigned in the building code; if not defined in either the ordinance or the building code, the words "shall have the meanings given in Webster's Unabridged Dictionary." Additionally, uses included in the ordinance's table of use regulations, § 17-3.4, "shall be further defined by the Standard Industrial Classification Manual published by the U.S. Bureau of the Census."⁵

c. Processing and treating. Neither the term "processing and treating" nor its component words are defined in the building code, see 780 Code Mass. Regs. § 2.00 (2014); § 17-11.1 of the ordinance next directs us to the dictionary. ASG argues that, as an asphalt plant involves processing raw materials and treating them with liquid asphalt, the dictionary definition of "processing" mandates a determination that asphalt production is a permitted use in the IBP district. We disagree. Webster's Third New International Dictionary 1808 (2002) defines "processing" as a component of "manufactur[ing]."⁶ The ordinance, by contrast, creates separate categories for processing and treating, raw materials, and manufacturing products. Adoption of ASG's literal interpretation would eliminate any practical distinction between these separate categories, merging them under a "manufacturing" heading with the undesirable result of rendering superfluous the "processing" term included in the ordinance. See, e.g., Shirley Wayside Ltd. Partnership, 461 Mass. at 477, quoting Connors, 460 Mass. at 796 ("We ‘endeavor to interpret a statute to give effect "to all its provisions, so no part will be inoperative or superfluous" ’ "); Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967) ("[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute"). Such an interpretation would not give the ordinance a "sensible and practical meaning." Owens v. Board of Appeals of Belmont, 11 Mass. App. Ct. 994, 995 (1981). See Selectmen of Hatfield v. Garvey, 362 Mass. 821, 826 (1973). Accordingly, as the judge did, we conclude that for the purposes of the ordinance, processing and treating is a use distinct from manufacturing. Because of these two categories, only manufacturing involves the creation of a new product, see Tilcon-Warren Quarries, Inc. v. Commissioner of Revenue, 392 Mass. 670, 673 (1984) (manufacturing transforms existing material into something new) -- which, we conclude, an asphalt plant does -- we read the ordinance to mean that operation of an asphalt plant is not a processing and treating use permitted by right in the IBP district.⁷

d. Light manufacturing. We likewise conclude that the judge properly interpreted the plain meaning of the ordinance definition of light manufacturing to restrict the permitted activities by method (i.e., "employing only electric or other inoffensive motor power, utilizing hand labor or quiet machinery and processes"), and by limiting the permitted manufacturing to "materials" that are "free from neighborhood disturbing agents," including odors. ASG does not claim that it demonstrated that its proposed asphalt plant would rely solely on hand power, electric, or other inoffensive power sources....