Simeone Stone Corp. v. Oliva

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SPIEGEL
• Citation: Simeone Stone Corp. v. Oliva, 350 Mass. 31, 213 N.E.2d 230 (Mass. 1965)
• Decision Date: 03 November 1965
• Parties: SIMEONE STONE CORP. v. Andrew T. OLIVA et al. SIMEONE STONE CORP. v. BOARD OF APPEALS OF BOURNE. Oliva and Ingersoll were interveners. . Augued

Page 230

213 N.E.2d 230

350 Mass. 31

SIMEONE STONE CORP. v. Andrew T. OLIVA et al.

SIMEONE STONE CORP. v. BOARD OF APPEALS OF BOURNE. Oliva and Ingersoll were interveners.

Supreme Judicial Court of Massachusetts, Barnstable.

Augued Nov. 3, 1965.

Decided Dec. 31, 1965.

Avram G. Hammer, Boston (Richard C. Sheppard, Boston, with him), for Andrew T. Oliva.

John L. Saltonstall, Jr., Boston, for Hope G. Ingersoll.

Robert W. Meserve, Boston (Dana C. Coggins, Boston, with him), for Simeone Stone Corp.

Before SPALDING, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

SPIEGEL, Justice.

These two suits are brought by the Simeone Stone Corp. (Simeone) under G.L. c. 40A, § 21. In the first suit Simeone seeks annulment of the decision of the board of appeals of the town of Bourne (board) upholding the appeals of the defendants Oliva and Ingersoll from the issuance of building permits by the building inspector of Bourne (inspector) to Simeone. The second suit is an appeal from a decision of the board denying Simeone's applications for special permits. The cases were consolidated for trial in the Superior Court. A decree annulling the decision of the board and in effect declaring the validity of the building permits was entered in the first case, from which decree the defendants Oliva and Ingersoll appeal. Simeone appeals from a decree dismissing the bill in the second case. The two suits are before us on a single record and the evidence is reported. The trial judge made 'Findings, Rulings and Order' in the first case. He also made a 'Report of Material Facts' in each case. In the first one he adopted the 'facts stated' in his 'Findings, Rulings and Order.'

The judge found that Simeone applied to the inspector for permits to build a sand and gravel processing plant, a concrete batching plant, and a bituminous concrete plant. The inspector issued permits for all three plants. Ingersoll, an abutting landowner, appealed the issuance of the permits. The board notified Simeone of the hearing on this appeal, stating: 'It has been alleged * * * that the issuance of said permits is in violation of the zoning by-laws * * * [s] IV B 5 b and * * * [s] X 2 a.' Oliva, a resident of the town of Bourne, filed a similar appeal with respect to the permit for the 'hot mix' plant only. The board also notified Simeone of the hearing on this appeal, stating: 'It has been alleged * * * that the issuance of said permit is in violation of the zoning by-law * * * [s] IV B, 5 b.' After a public hearing, the board voted four to one 'that the Building Inspector exceeded his authority in granting the permits under Section IV B 3 [which requires operations to be carried on entirely within structures or enclosed space] and they should properly have been brought under Section IV B 5 b.' ¹

After the board ruled that applications for permits should have been brought under § IV B 5 (b), Simeone applied to the board for special permits under that section. The board denied Simeone's applications for the following reasons: '1. Detrimental to the Scenic Highway Residential area. 2. It will be detrimental to the further development of the Bournedale business zoned area. 3. It would likely be obnoxious to the citizens of the Town of Bourne.'

The evidence at the trial on the appeals from the decisions of the board is herewith summarized. The inspector testified that Simeone indicated that the plants for which it was asking permits would look substantially the same as the ones in the photographs submitted, and that Simeone informed him of its plans to widen the road going on to the property to make it safer for traffic. Benjamin A. Simeone, the treasurer of Simeone, stated that he informed the inspector of his intention to blacktop the road and to use water to keep down the dust. He also said that the present plant in Stoughton is substantially the same as the one proposed for Bourne. Oliva testified that he was employed by a competitor of Simeone, and that in his experience such plants emitted quantities of dust, noise, odor and fumes. Dr. Melvin First, an expert for Simeone, stated that it was unlikely that any such plants would be obnoxious to the citizens of Bourne in terms of dust, fumes, odor or noise.

Salvatore Simeone, the president of Simeone, testified that the operations would be carried on in an enclosed space, and that he had stated at the hearing that the conveyor belts and the apparatus used for screening sand and gravel would be enclosed. However, he admitted that the photographs and plans submitted with the application to the inspector did not indicate such enclosure. Another witness for Sime-one testified as to improvements in dust control equipment.

Leonard C. Mandell, an expert for the defendants, testified that the operation of the ready mix cement plant as shown in the photograph attached to the application would interfere only minimally with activity along the Scenic Highway; that the operation of the sand and gravel plant would have no significant air pollution effect; and that the bituminous mix plant would be obnoxious to the citizens of Bournedale. Photographs of Simeone's bituminous mix plant in Stoughton show fumes rising from a stack.

Henry F. Maiolini, the chief of police of the town of Bourne, testified that the trucks going in and out of the premises in question would create a traffic hazard. Charles L. Cherry, a forester, stated that smoke emitted from a plant such as the Stoughton plant would seriously affect his ability to detect and control forest fires originating southwesterly of the proposed plant. William G. Bryden, a real estate appraiser, testified that the operation of the proposed plant would depress prices on neighboring real estate. Louis Larusso, the owner of several sand and gravel plants, asphalt plants, and concrete plants, stated that he had never seen a totally enclosed sand and gravel plant or bituminous plant, and that a ready mix plant could not be enclosed at the point of introduction of material or the point of loading of material. He also said that the Federal Aviation Agency requested him to close down one of his plants next to an airport because of the dust emission.

The trial judge found '[t]hat the decision of the Board of Appeals was that the Building Inspector was without authority in granting the permits under Section IV (B) 3, and not that his decision in granting the permits was erroneous.' The judge then ruled that 'the issuance of building permits is initially within the jurisdiction of the Building Inspector,' and '[t]hat the decision of the [b]oard * * * is clearly erroneous.' This ruling ignores the board's decision that the applications 'should properly have been brought under Section IV B 5 b.' The logical reading of the decision of the board is that § IV B 3 was inapplicable to the proposed plants and § IV B 5 (b) was applicable instead.

Simeone contends that the decision of the board should be annulled 'because it was based on a reason not specified in the notices of appeal filed by the private party respondents or in the notices of hearing served by the Board on the Petitioner.' The notice of Ingersoll's appeal referred to violation of §§ IV B 5 (b) and X 2 (a). ² The notice of Oliva's appeal referred solely to violation of § IV B 5 (b).

The purpose of notice is to inform a party of the charges which he will be called upon to meet so that he may properly prepare his defence. Manchester v. Selectmen of Nantucket, 335 Mass. 156, 158-159, 138 N.E.2d 766. The inspector had authority to issue a building permit under § IV B 3 if the operation was to be carried on within structures or enclosed space. He had no authority to issue a special permit under § IV B 5 (b). Such a permit can only be issued by the board. The issuance of either permit is sufficient to authorize construction. The allegation that a permit should not have been issued because it violated § IV B 5 (b) implied that Simeone was required to show that there was no violation of that section. The only reason for such a requirement is that Simeone could not properly obtain a permit under § IV B 3 because the proposed operation was not to be carried on within structures or enclosed space. The notice informed Simeone of a contention that § IV B 5 (b) was the provision of the by-law applicable to its proposal and, by inference, that § IV B 3 was not applicable. We note, too, from our review of the evidence that apparently at the hearing before the board on the appeals to Oliva and Ingersoll a representative testified in regard to the 'enclosing or non-enclosing of the belts' and that Simeone 'would enclose * * * [its] structures.' In addition, Simeone 'brought in pictures and plans and so...