Tebo v. Board of Appeals of Shrewsbury

• Citation: 495 N.E.2d 892,22 Mass.App.Ct. 618
• Court: Appeals Court of Massachusetts
• Decision Date: 04 August 1986
• Parties: Maureen J. TEBO & et al. 1 v. BOARD OF APPEALS OF SHREWSBURY & et al. 2 (and two companion cases 3 .

Page 892

495 N.E.2d 892

22 Mass.App.Ct. 618

Maureen J. TEBO & et al. ¹ v. BOARD OF APPEALS OF SHREWSBURY & et al. ² (and two companion cases ³.

Appeals Court of Massachusetts,

Worcester.

Argued May 5, 1986.

Decided Aug. 4, 1986.

Susan K. Scott, Boston, for Maureen J. Tebo & others.

Roger J. Brunelle, Worcester, for Worcester Sand & Gravel Co., Inc. & another.

Suzanne E. Durrell, Asst. Atty. Gen. (Stanley Adelman, Boston, with her) for Bd. of Fire Prevention Regulations.

Before GRANT, KASS and FINE, JJ.

KASS, Justice.

All three cases ⁴ arise from the collision of the same protagonists, Worcester Sand & Gravel Company, Incorporated WS & G), which quarries rock and gravel, and Sprague Electric Company (Sprague), which makes microelectronic components. Blasting attendant to quarrying is inimical to the dust-free and vibration-free conditions required in the manufacture of products such as microintegrated circuits.

WS & G applied for a special permit to conduct earth removal operations on a sixty-seven acre area in Shrewsbury northeasterly of the Shrewsbury-Worcester line. Sprague manufactures microelectronic components in a Worcester facility 600 feet from the nearest point of WS & G's site ⁵ and Sprague, allied with other neighbors, sharply opposed the application. The Board of Appeals of Shrewsbury (hereafter the "zoning board") granted a special permit, an action that spawned what we shall refer to as "the zoning case." Against the possibility of disappointment in the zoning case, Sprague organized an effort to secure enactment of a protective State regulation. In due course, the Board of Fire Prevention Regulations (hereafter the "fire board") which exists within the Department of Public Safety (G.L. c. 22, § 14), adopted a regulation which forbade blasting "within a two-and-one-half (2 1/2) mile radius of a microelectronic manufacturing operation that will cause vibration velocities to exceed by more than ten percent (10%) the existing vibration velocity at said operation." 527 Code Mass.Regs. § 13.11(1)(e) (1984). A challenge to the validity of that regulation produced what we shall refer to as "the blasting regulation" case.

I. The Zoning Case.

Shrewsbury's zoning by-law contains a provision, § VII(H), expressly dealing with earth removal. Except when earth removal is incidental to otherwise permitted construction activity, it requires a special permit from the zoning board, § VII(H)(1)(d). Subsection 2 of § VII(H) prescribes eleven conditions by which the board is to regulate earth removal. Those include such matters as site plan approval, duration of the removal operations, limitation of removal to phases not exceeding ten acres at a time, buffer strips, the pitch of excavated slopes, final grading and restoration. By a decision filed with the town clerk on March 7, 1983, the zoning board, acting unanimously, granted a special permit for earth removal to WS & G. The zoning board found that WS & G had conducted a sand and gravel rock removal and rock crushing business in Shrewsbury for many years. As to the areas of concern raised by those in attendance at the public hearings, the zoning board said that it had given them close attention. Principal among those concerns were the dust and vibration which would be generated by blasting.

The zoning board then proceeded to lay down restrictive conditions for earth removal from the locus. Those included: (1) limitation of the area in which initial removal would take place; (2) limiting the slope at the perimeter of the excavation; (3) construction of a retention area for water runoff; (4) enclosure of the removal area with a six-foot high metal "non-climbable" fence; (5) limitation of access to the site to one entrance at which a gate was to be installed; (6) limitation of blasting to one blast per week and one detonation per day of blasting; (7) the taking of seismograph readings at specified locations in conjunction with each blast; (8) specification of time during which blasting and drilling may be conducted; (9) and establishing final grades and criteria for restoration following completion of quarry activity in a particular area.

(a) Adequacy of findings. By their nature, the detailed conditions imposed by the zoning board do double duty as findings that the special permit applied for might be exercised in harmony with the general purpose and intent of the zoning by-law, as the statute requires. See G.L. c. 40A, § 9.

If the conditions were faithfully observed, it followed that, in the view of the zoning board, earth removal could be carried on without unreasonable adverse impact upon the surroundings. The zoning board also found that WS & G had lawfully operated sand and gravel and rock crushing operations for many years in a location less than a quarter of a mile away. To attain a desirable industrial use (for which the locus was zoned) "substantial removal of rock and ledge would have to be done before any practical approach to construction could be undertaken." The board avoided the common vice of parroting the statutory standards for a grant of a special permit in lieu of findings. Compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 298, 285 N.E.2d 436 (1972); Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 10, 416 N.E.2d 1382 (1981); Alpert v. Board of Appeals of Chelsea, 6 Mass.App.Ct. 888, 889, 376 N.E.2d 1265 (1978).

(b) Asserted untenable ground. As a reason for exercising its discretionary power in respect of special permits (see MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 637-639, 255 N.E.2d 347 [1970]; Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App.Ct. 483, 486-488, 395 N.E.2d 880 [1979] ) in a favorable manner, the zoning board reflected that under the zoning by-law it could exercise more supervision over earth removal in conjunction with the grant of a special permit for that purpose than would be the case if a landowner removed earth as matter of right incident to a construction project. At most this was a collateral consideration and not, as the appellants argue, an untenable basis for decision. See Caruso v. Pastan, 1 Mass.App.Ct. 28, 29-30, 294 N.E.2d 501 (1973); Garvey v. Board of Appeals of Amherst, 9 Mass.App.Ct. 856, 400 N.E.2d 880 (1980). Compare MacGibbon v. Board of Appeals of Duxbury, supra 356 Mass. at 640-641, 255 N.E.2d 347. The primary basis for grant of the permit was that the quarrying could proceed in harmony with the by-law.

(c) Open meeting law. The proceedings before the zoning board stimulated two actions in the Superior Court. The first, sequentially, asked for declaratory relief and an injunction against the zoning board, prohibiting it from conducting a hearing on WS & G's second application (an earlier application had been withdrawn) for a special permit. That action was founded on a variety of claimed procedural irregularities, the most prominent of which was an asserted failure to comply with the open meeting law. See G.L. c. 39, §§ 23A and 23B. Following the grant of the special permit, the same parties filed a second action which employed the conventional procedure for review of zoning board decisions provided in G.L. c. 40A, § 17. That complaint also alleged a violation of the open meeting law.

Concerning the asserted violations of the open meeting law, it is enough to record that the trial judge found that, fundamentally, G.L. c. 39, § 23B, had been complied with, that all parties had ample opportunity to be heard, and that, if any technical violations existed, they were de minimis. Accordingly, he concluded, no invalidation of action of the zoning board was warranted under § 23B. Power to set aside public action because of violations of § 23B is discretionary in nature. Robinson v. Planning Bd. of Hingham, 6 Mass.App.Ct. 835, 836, 372 N.E.2d 279 (1978). Yaro v. Board of Appeals of Newburyport, 10 Mass.App.Ct. 587, 592, 410 N.E.2d 725 (1980). There was no abuse of that discretion.

We are of opinion that public notice, made conformably with G.L. c. 39, § 23B, sufficed for adjourned sessions, including the zoning board's meeting of March 2, 1983, at which the zoning board deliberated and voted to grant a special permit to WS & G. Renewed notice by mail to interested persons was not legally required. See G.L. c. 40A, § 15. It frequently occurs that a case is not finished on the advertised hearing day. It would be awkward, indeed, if mailed notice were required of each successive session. In any event, the only session of which the appellants arguably did not have actual notice was the one at which the zoning board deliberated only. Cf. Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 113-115, 436 N.E.2d 1236 (1982).

(d) Dust control. Among the conditions which the Shrewsbury by-law requires the zoning board to establish, should it grant a special permit for earth removal, is that "Satisfactory dust control provisions have been agreed upon." See by-law § VII(H)(2)(e). None was. Rather, the special permit provided: "Before commencing any operation, a detailed plan of dust control must be submitted to the Board for approval."

Sprague and its fellow appellants mount a cogent attack that the special permit is defective because it postpones for future action a determination of substance, the fatal weakness of the special permit in Weld v. Board of Appeals of Gloucester, 345 Mass. 376, 378, 187 N.E.2d 854 (1963). The Weld case is often cited but almost invariably distinguished. ⁶ The core of the Weld rule, however, remains. It is that a permit granting authority in a zoning case (e.g., a board of appeals) may not delegate to another board, or reserve to itself for future decision, the determination of an issue of substance, i.e., one central to the matter before the permit granting authority. See Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339, 374-375, 294 N.E.2d 393 (1973); ...