Fish v. Accidental Auto Body, Inc., 18-P-345

• Citation: 125 N.E.3d 774,95 Mass.App.Ct. 355
• Decision Date: 24 May 2019
• Docket Number: 18-P-345
• Parties: Jonathan FISH & another v. ACCIDENTAL AUTO BODY, INC., & others.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 355

125 N.E.3d 774

Jonathan FISH¹ & another²

v.ACCIDENTAL AUTO BODY, INC., & others.³

18-P-345

Appeals Court of Massachusetts, Barnstable..

Argued November 7, 2018

Decided May 24, 2019

Christopher G. Senie for the plaintiffs.

Shannon Dunn Resnick, Bridgewater, for the Accidental Auto Body, Inc., & another.

Present: Agnes, Blake, & Neyman, JJ.

AGNES, J.

On 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,⁴ 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.⁵

Background. We draw 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.⁶ 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.

The top 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.⁷ 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.^{8 ,9} 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.

The 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."¹⁰

The 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."

In 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."

Discussion. 1. Timeliness of the appeal. As an 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 of the motion, however, was that the judgment was amended to remove the award of costs. A corrected judgment entered on January 11, 2018. On February 6, 2018, the plaintiffs filed their notice of appeal.

Without citation to authority, Auto Body contends that because the motion to amend did not pertain to the issues the plaintiffs pursue on appeal, they should have filed a notice of appeal within thirty days of the original December 13, 2017 judgment. Nothing in rule 4 (a) requires piecemeal notices of appeal. Rather, rule 4 (a) expressly provides that when a timely motion to alter or to amend a judgment under Mass. R. Civ. P. 59, 365 Mass. 827 (1974), or Mass. R. Civ. P. 60, 365 Mass. 828 (1974), is served within ten days after entry of judgment, a notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Indeed, any previously filed notice of appeal is without effect. We conclude, therefore, that the plaintiffs' notice of appeal was timely. Contrast Franchi Mgt. Co. v. Flaherty, 93 Mass. App. Ct. 418, 422-424, 105 N.E.3d 289 (2018) (sua sponte correction of clerical error does not restart thirty-day time period to file notice of appeal; nor did party's subsequent motion to correct additional clerical error, filed some 750 days after original judgment entered, restart thirty-day time period where appeal did not relate to correction in amended judgment).

2. Nature of a special permit. "Special permit procedures have long been used to bring flexibility to the fairly rigid use classifications of Euclidean zoning schemes ... by providing for specific uses which are deemed necessary or desirable but which are not allowed as of right because of their potential for incompatibility with the characteristics of the district." SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 109, 472 N.E.2d 269 (1984). "Uses most commonly subjected to special permit requirements are those regarded as troublesome (but often needed somewhere in the municipality, for example, gasoline service stations, parking lots, and automobile repair garages) ...; and uses often considered desirable but which would be incompatible in a particular district unless conditioned in a manner which makes them suitable to a given location (for example, an apartment house in a single family residential district)." Id.

In the case of the town, special permits are governed by art. VI, § 174-24(C)(2), of the bylaw, which provides in relevant part that "[a] Special Permit may be issued only following the procedures specified by the General Laws and may be approved only if it is determined that the proposed use or development is consistent with applicable [S]tate and town regulations, statutes, bylaws and plans, will not adversely affect public health or safety, will not cause excessive...