RicMer Properties, Inc. v. Board of Health of Revere, 01-P-1083.

• Decision Date: 05 September 2003
• Docket Number: No. 01-P-1083.,01-P-1083.
• Parties: RICMER PROPERTIES, INC. v. BOARD OF HEALTH OF REVERE.
• Court: Appeals Court of Massachusetts

59 Mass. App. Ct. 173

794 NE 2d 1236

RICMER PROPERTIES, INC. v. BOARD OF HEALTH OF REVERE.

No. 01-P-1083.

Appeals Court of Massachusetts, Suffolk.

January 22, 2003.

September 5, 2003.

Present: JACOBS, DUFFLY, & BERRY, JJ.

Martin C. Pentz for the plaintiff.

Michael N. Sheetz for the defendant.

JACOBS, J.

In 1998, RicMer Properties, Inc. (RicMer), filed an application with the defendant board of health of the city of Revere (board) seeking site assignment of a waste disposal facility under G. L. c. 111, § 150A. Pursuant to that statute, an applicant who wishes to operate a solid waste facility must submit an application to the local board of health and simultaneously submit copies to the Department of Environmental Protection (DEP) and the Department of Public Health. If, as was the case here, the DEP issues a favorable report indicating that the siting criteria in G. L. c. 111, § 150A ½, have been met, the local board must hold a public hearing and issue its decision. See generally Wood Waste of Boston, Inc. v. Board of Health of Everett, 52 Mass. App. Ct. 330, 332 (2001).

After the board held the statutorily required public hearing, it denied RicMer's application. RicMer sought review in the Superior Court pursuant to G. L. c. 30A, § 14, and, following a hearing, a judge of that court affirmed the board's decision and ordered judgment dismissing RicMer's complaint. In this appeal, RicMer claims that the board's decision should be reversed because the hearing was tainted by unlawful procedure when the mayor and city council of Revere together were allowed to intervene as a party; RicMer further claims that the board's findings that the proposed facility would pose a danger to public health, safety, and the environment were not supported by substantial evidence. We affirm.

The proposed facility. RicMer proposed a solid waste transfer and recycling operation of up to 1,000 tons per day of municipal waste, including garbage from households and commercial establishments, and construction and demolition debris. The site comprises approximately 3.75 acres in a general industrial zone in Revere, and is approximately 1.6 miles north of Logan International Airport. It was planned that trucks would deliver materials to, and remove them from, a building to be constructed on the site, entering and leaving through a proposed quick-opening industrial door system.

The city's intervention. On July 15, 1999, a preliminary hearing, conducted by counsel for the board, was held to establish rules of procedure, to consider any motions to intervene or participate, and generally to establish the rules for the subsequent substantive public hearings. RicMer was represented at the public hearing. A hearing officer was appointed without objection. Counsel for the board described the roles of parties and participants, indicating that there had been substantial public interest in the project, and that a number of local and State elected officials had expressed interest in presenting statements.¹

The hearing officer then accepted the suggestion of counsel for the board that motions to intervene or participate be considered. Counsel for the city of Revere (city) stated he wished formally to intervene on behalf of the city, and filed a notice of appearance.² Following consideration of the requests of a number of individuals who identified themselves and requested designation as parties or participants, counsel for RicMer stated his objection that there was no record of the city filing a registration under 310 Code Mass. Regs. § 16.20(9)(b) (1994) prior to the hearing. There was no request made of the hearing officer for any ruling or action. The hearing officer overruled the objection.

The substantive public hearing was held in sessions over thirteen days between July 15 and October 7, 1999. RicMer presented four expert witnesses. The city presented five experts. Both parties submitted a number of reports, studies, and plans as exhibits. Counsel for the city and for RicMer engaged in cross-examination of each witness. In their briefs, the parties do not cite any objections at the hearings to the testimony or the exhibits. A final hearing session was held on February 9, 2000, for the presentation of closing arguments from the several parties and participants. The mayor declined to make a statement, stating he would defer to counsel for the city. Two members of the city council made statements, as did one State representative.

A fair review of the public hearing process indicates that there was no prejudice to RicMer's procedural due process rights. RicMer's parsing of the regulations in an attempt to support counsel's objection at the hearing reveals, at most, an immaterial noncompliance by the city with certain formal requirements set forth in 310 Code Mass. Regs. § 16.20(9)(b).³

RicMer also argues that the city, in asserting its entitlement to intervention, neither made a showing of good cause nor stated how it would be "specifically and substantively affected by the hearing." The term "good cause" is not defined in the regulations,⁴ and 310 Code Mass. Regs. § 16.20(9)(a) (1994) does not explicitly require that the hearing officer enter on the record how a determination of good cause has been made, or how a person will be "specifically and substantively" affected before intervention is allowed. Moreover, "determination" is not defined. For these reasons, and because these regulations appear to have been based upon the more formal requirements of G. L. c. 30A,⁵ we consider analogous practice under that chapter.

The regulations with respect to intervention in this case parallel the Standard Adjudicatory Rules of Practice and Procedure, where intervention is allowed at the discretion of the presiding officer or the agency.⁶ Compare Boston Edison Co. v. Department of Pub. Util., 375 Mass. 1, 45, cert. denied, 439 U.S. 921 (1978); Cablevision Sys. Corp. v. Department of Telecommunications & Energy, 428 Mass. 436, 437, 439 (1998); Selectmen of Stockbridge v. Monument Inn, Inc., 8 Mass. App. Ct. 158, 161-162 (1979), S.C., 14 Mass. App. Ct. 957 (1982) (a judge is allowed a "full range of reasonable discretion in determining whether the requirements of intervention under Mass.R.Civ.P 24(a)(2), 365 Mass. 769 (1974), have been met").

The actions of the hearing officer and the parties on this record indicate that the intervention decision by the hearing officer was within the permissible bounds of discretion. Compare Wilmington v. Department of Pub. Util., 340 Mass. 432, 434-435, 437 (1960) (intervention either expressly or impliedly permitted where town counsel entered an appearance in a G. L. c. 30A proceeding, presented evidence, cross-examined the other party's witnesses, presented oral argument, and filed a brief). The city's participation in this case did not constitute a substantive violation of the regulations. To the extent that there were any procedural deficiencies, they were inconsequential in view of the city's obvious and overriding interest in the location of a waste disposal site within its borders and of the hearing officer's implicit recognition of that interest by his allowing the city to participate as a party in the hearing.

There is no merit in RicMer's assertion that the participation of the "Mayor and City Council" as a party invited them to advance their political agenda.⁷ Although counsel for the city stated he was appearing on behalf of the city "at the direction of the Mayor and the City Council," there is no indication in the record that counsel's presentation of evidence and witnesses, or his conduct in cross-examination and argument, in any way represented solely the views of the mayor or of the council members as individuals.⁸ The city's presentation of evidence through five experts, not objected to by RicMer, focused on issues of air traffic hazards related to birds being attracted to the proposed facility; adequacy of size of the facility; impacts on traffic; noise; groundwater; attraction of vermin; odors; and air quality standards. In such well-known matters of public concern, municipalities may be in a significantly superior position to individual citizens in representing the public interest. Compare Sudbury v. Department of Pub. Util., 351 Mass. 214, 218 (1966) (in an analogous proceeding for land taking proposed by a public utility, the court stated that "cities and towns are the only entities which can be expected to offer a real, practical, and adversary representation of the public interest").⁹ Moreover, while the mayor and three city councillors testified, RicMer has not specifically identified what, if anything, constitutes a "political agenda" in any of their statements, nor has it done more than characterize their views in opposition to the application as such an agenda.¹⁰ The city's intervention, rather than advancing a political agenda, benefitted the proceedings by expanding the evidentiary record on which the board could base its decision.

Lastly, RicMer has not identified what "substantial rights" may have been prejudiced, see G. L. c. 30A, § 14, by any procedural error. It had ample opportunity to present its case. There is no indication in this record that the procedure was in any way so unfair as to raise a question of procedural due process. Compare Marmer v. Board of Registration of Chiropractors, 2 Mass. App. Ct. 162, 168-169 (1974), and cases cited.

Substantial evidence. There is no merit in RicMer's sweeping assertion that the board's denial was not supported by substantial evidence.¹¹ Pursuant to G. L. c. 111, § 150A, "the DEP's site suitability determination is not binding on the local board which must make an independent determination whether the proposed site complies with the criteria of § 150A ½ and 310 Code Mass. Regs. § 16.40 (1994)." TBI, Inc. v. Board of Health of N. Andover, 431 Mass. 9, 11-12 (2000).¹² The board conducted an extensive de novo proceeding,...