Robert Duffy v. Town of Berwick , 82 A.3d 148 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 105
Docket: Yor-12-398
Argued: September 11, 2013
Decided: December 5, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
ROBERT DUFFY et al.
v.
TOWN OF BERWICK et al.
JABAR, J.
[¶1] Berwick Iron & Metal Recycling, Inc., appeals from a judgment
entered in the Superior Court (York County, Fritzsche, J.) vacating the Berwick
Planning Board’s decision to grant a conditional use and site plan permit that
would allow Berwick Iron to operate a metal shredder on its property.1 Berwick
Iron argues that the court erred in vacating the Planning Board’s judgment because
the Board did not err in applying the ordinance governing air emissions. Robert
Duffy and other neighboring landowners who oppose the permit cross-appeal,
arguing that the court erred in concluding that the Planning Board did not violate
the abutters’ due process rights by communicating ex parte with representatives
1
Although the Town of Berwick filed an appellant’s blue brief and argued to vacate the Superior
Court’s judgment, it did not file a notice of appeal. “Any party seeking to modify a judgment must file a
notice of appeal to have its arguments properly considered.” Wister v. Town of Mount Desert,
2009 ME 66, ¶ 1 n.1, 974 A.2d 903; see also M.R. App. P. 2.
2
from Berwick Iron and in applying the provision in its ordinance pertaining to
noise. We conclude that despite the Planning Board’s ex parte communications
with Berwick Iron, it did not violate the due process rights of the abutters or err in
applying its ordinance, and thus, we vacate the court’s judgment and remand for
entry of a judgment affirming the Planning Board’s decision.
I. BACKGROUND
[¶2] Berwick Iron operates a metal and automobile recycling business in a
rural commercial and industrial district in Berwick. The facility has been operating
under an existing conditional use permit for automobile recycling. See Berwick,
Me., Land Use Ordinance § 6.2 (Nov. 2, 2010) (providing that automobile
recycling requires a conditional use permit). On September 9, 2010, Berwick Iron
applied for a conditional use permit to install and operate a metal shredder for
vehicles that it currently processes with front-end loaders and metal shears.
[¶3] The metal shredder processes vehicles that have been flattened and
drained of all fluids before arriving onsite. The vehicles travel along a conveyor
belt through the shredder, and the shredded metals are then separated into two piles
of ferrous (containing iron) and nonferrous metals, loaded onto purchasers’ trucks,
and transported offsite. The shredder is powered by a 3,600 horsepower diesel
engine, commonly used on cruise ships, which is encased by concrete walls to
3
muffle noise. A 45-foot stack protrudes from the top of the engine encasement,
through which the engine emits diesel exhaust.
[¶4] In support of its permit application, Berwick Iron initially submitted to
the Planning Board a noise study, reporting that, based on measurements taken at a
similar facility in Connecticut, the anticipated noise levels would meet ordinance
requirements. Berwick Iron also provided a copy of the air emissions license
granted to it by the Department of Environmental Protection. An attorney
representing nine abutting landowners who opposed the permit presented concerns
about the metal shredder to the Board. The abutting landowners cited concerns
chiefly about harmful air emissions, noise produced by the shredder and the
engine, and the toxic waste product generated by automobile recycling plant—
known as shredder residue or “fluff,”
[¶5] The Board considered Berwick Iron’s application in an informational
meeting on September 16, 2010, and in two public hearings on October 7, 2010,
and February 17, 2011. During its consideration of Berwick Iron’s application, the
Planning Board also held two site walks without inviting members of the public.2
The first nonpublic site walk, held on September 25, 2010, was scheduled for
members of the Board, and members of the public were neither specifically invited
2
Additionally, two members elected to the Planning Board in the fall of 2010 attended a private site
walk with the facility’s owners on October 5, 2010.
4
nor excluded. During a public meeting on January 6, 2011, the Board scheduled a
second site walk to take place on January 8, 2011, and the Board chairperson asked
the owner of Berwick Iron “What is your pleasure about having it open to the
public?” The owner responded, “[W]e are better off just having the Planning
Board come in,” and the members of the Planning Board agreed. After scheduling
a time for the site walk, Berwick Iron’s owner interjected and offered to “invit[e]”
the attorney for the abutting landowners, “if [he] would like to come,” but the
attorney for the abutters declined.
[¶6] On February 3, 2011, the Board adjourned its regular public meeting to
hold a “workshop session” regarding Berwick Iron’s pending application, without
giving the opportunity for public comment. The Board indicated that it received
input from the attorney for the abutting landowners and from representatives of
Berwick Iron during the session, but it is unclear whether the session was closed to
the public because the Board did not record this session. Additionally, Board
members sent and received several emails from representatives of Berwick Iron
regarding Berwick Iron’s pending application, and the Board did not send copies of
the emails to the abutters and did not notify the public or the abutters about the
emails. On March 3, 2011, the Board unanimously voted to approve the
conditional use permit and issued a written decision on March 17, 2011.
5
[¶7] The abutters sought review of the Board’s decision in the Superior
Court. See 5 M.R.S.§ 11001 (2012); M.R. Civ. P. 80B. The court vacated the
Board’s decision, citing violations of the abutter’s due process rights in the
nonpublic site walks, meetings, and email correspondence. The court noted that
the Board’s process “suggest[ed] a lack of respect for and fair treatment of the
[abutters] by the Board,” and that “the [abutters] did not receive the fair and
unbiased hearing that they were entitled to.” The court also concluded that the
Board erred in applying the air emissions standard in the ordinance.
[¶8] On remand, the Board held a site walk that was open to the public on
November 5, and two public hearings on November 17 and December 1, 2011.
Both Berwick Iron and the abutting landowners provided the Board with the
opinions of sound engineers that differed on whether the project would meet
ordinance sound requirements. In response to the differing opinions, the Board
scheduled a live sound test of the shredder to allow both the abutters’ and Berwick
Iron’s sound engineers to take decibel measurements.
[¶9] Additionally, on October 6, 2011, Berwick Iron provided a study that
analyzed the project’s potential air emissions and concluded that “the results of the
analysis demonstrate that the project conforms with the Town of Berwick’s
[ordinance].” The abutting landowners also provided a written opinion of an
6
emissions expert, criticizing the conclusions made in the air emissions study
provided by Berwick Iron.
[¶10] Presented with the conflicting air emissions studies from Berwick
Iron and the abutters, the Board decided to hire an environmental consulting firm
to conduct an independent review of both studies. Because Berwick Iron was
required to pay the costs of the town’s independent review expert, before hiring its
peer reviewer, the Board solicited estimates from three engineering firms and
compared prices. The Town Planning Coordinator then contacted the attorney
representing Berwick Iron, attaching the three proposals, with the following email:
Jon St. Pierre[, the Town engineer,] gave me the names of
several engineering firms and the three I contacted were Sevee &
Maher (SME), Tetra Tech and MacMillian [sic] & Donnelly.
MacMillan & Donnelly came in with the lowest estimate at $1,500,
Tetra Tech at $3200 and SME[’s] estimate was $5,700. I have
attached the three proposals for your review.
Please review them and let me know if you agree that I should
contact MacMillan & Donnelly and instruct them to proceed with the
peer review.
Berwick Iron’s attorney later responded with another email stating, “Yes, it’s fine
with us if you instruct MacMillan & Donnelly to proceed with the peer review.”
Neither the Planning Coordinator nor the Board informed the public or the attorney
for the abutting landowners about this exchange.
7
[¶11] After the Board received the results of the sound study and evidence
from the independent reviewer on the air emissions study, it voted again to approve
the conditional use permit. The Board issued its written decision on
January 5, 2012, and the abutters sought review in the Superior Court. The court
vacated the Board’s judgment a second time, concluding that when the Board
sought approval of its choice of independent reviewers from Berwick Iron, without
notifying the public or the abutters’ counsel, it violated the abutters’ due process
rights. Additionally, the court found that the Board again erred in applying its air
emissions ordinance by relying in part on state and federal standards.
[¶12] In a written decision on August 3, 2012, the court remanded the case
to the Board to determine whether the facility met the more stringent ordinance
standard for air emissions. Berwick Iron timely appealed the court’s judgment to
this Court, see 5 M.R.S. § 11008(1) (2012); see also M.R. App. P. 2(b)(3), and
filed a post-judgment motion requesting that the Superior Court clarify its
judgment, see M.R. Civ. P. 59(e). The Superior Court amended its judgment,
stating, “While the Board did violate due process, that violation did not influence
the outcome of the case,” and “remand to correct the flawed process of choosing
the Board’s expert would serve no purpose.” See M.R. App. P. 3(b) (permitting
the court to issue an order on a M.R. Civ. P. 59(e) motion to alter or amend the
court’s judgment pending appeal). Further, the court clarified its judgment
8
regarding the Board’s error in applying the air emissions standard, stating that the
ordinance restricts even “minimal” emissions: “‘Insignificant’ emissions are
different from no emissions. ‘Minimal’ is obviously different from ‘nonexistent.’
The Town enacted a very strict ordinance which was not met.” The abutters filed a
timely notice of a cross-appeal. See 5 M.R.S. § 11008(1); see also M.R.
App. P. 2(b)(3).
II. DISCUSSION
[¶13] “When the Superior Court acts in an appellate capacity we review
directly a local agency’s decision for abuse of discretion, errors of law, and
findings not supported by the evidence.” Malonson v. Town of Berwick,
2004 ME 96, ¶ 5, 853 A.2d 224. “The party seeking to overturn . . . [a] Board’s
decision[] bears the burden of persuasion.” Lane Constr. Corp. v. Town of
Washington, 2008 ME 45, ¶ 11, 942 A.2d 1202.
A. Due Process
[¶14] The abutters argue that the Planning Board violated the abutters’ due
process rights when the Planning Coordinator sent an email only to the attorney for
Berwick Iron seeking approval of the Board’s selection of an independent
reviewer, hired to assess the competing opinions of experts on air emissions.3
3
We note that this allegation also comes after the Planning Board rendered the first decision on
Berwick Iron’s application. The Superior Court ultimately vacated the Board’s initial decision because it
was fraught with procedural violations. We pause to emphasize that local planning boards’ meetings,
9
[¶15] Both an applicant and members of the public who oppose a project are
“entitled under the [D]ue [P]rocess [C]lause of the United States and Maine
[C]onstitutions to a fair and unbiased hearing.” Gorham v. Town of Cape
Elizabeth, 625 A.2d 898, 902 (Me. 1993); see also U.S. Const. amend. XIV § 1;
Me. Const. art. I, § 6-A; Lane Constr. Corp., 2008 ME 45, ¶¶ 28-29,
942 A.2d 1202 (recognizing the procedural due process rights of a project’s
opponents before a municipal planning board). The Due Process Clause “‘protects
against the exercise of arbitrary governmental power and guarantees equal and
impartial dispensation of law according to the settled course of judicial
proceedings or in accordance with fundamental principles of distributive justice.’”
Mutton Hill Estates, Inc. v. Town of Oakland, 468 A.2d 989, 993 (Me. 1983)
(quoting the trial court opinion with approval).
records, and actions, governed by the Freedom of Access Act, must be open to the public and their
deliberations conducted openly. 1 M.R.S. §§ 401, 402(2)(C) (2012). Only in very limited exceptions
does the Freedom of Access Act permit proceedings to take place without public notice and the
opportunity for public participation. See 1 M.R.S. §§ 403(1), 405 (2012) (providing for nonpublic
deliberations conducted during executive session or “as otherwise provided by statute”).
After the Berwick Planning Board’s initial decision on Berwick Iron’s application, the Superior Court
adeptly described the procedural issues as follows:
The [abutters’] procedural challenges [to the Board’s decision] are of great[] concern and
suggest a lack of respect for and fair treatment of the [abutters] by the Board. Board
members are volunteers who have assumed an often demanding and frequently thankless
job. However, proceedings must be conducted consistent with due process such than an
objective participant, win or lose, would conclude that he or she had been heard, that the
result was not preordained and that the process was fair.
Because those issues were resolved after the Superior Court vacated and remanded the Planning Board’s
first decision and are not challenged by the abutters, we address only the issue of whether the email from
the Planning Coordinator violates the abutters’ due process rights.
10
[¶16] However, “[w]hat constitutes due process in [a planning board]
hearing, particularly one which is not adjudicating disputes between private
parties, but is attempting to gather facts for the review of a [permit application]
depends primarily upon the nature of the proceedings and the possible burden upon
that proceeding.” Cunningham v. Kittery Planning Bd., 400 A.2d 1070, 1079
(Me. 1979). This flexible concept of due process stems from the need of municipal
bodies to play a variety of roles, akin to those of government agencies:
[W]hen governmental agencies adjudicate or make binding
determinations which directly affect the legal rights of individuals, it
is imperative that those agencies use the procedures which have
traditionally been associated with the judicial process. On the other
hand, when governmental action does not partake of an adjudication,
as for example, when a general fact-finding investigation is being
conducted, it is not necessary that the full panoply of judicial
procedures be used. . . . The nature of the alleged right involved, the
nature of the proceeding, and the possible burden on that proceeding,
are all considerations which must be taken into account.
Hannah v. Larche, 363 U.S. 420, 442 (1960); see also In re Me. Clean Fuels, Inc.,
310 A.2d 736, 745-48 (Me. 1973).
[¶17] In the context of municipal planning boards, we have stated that due
process entitles a party “to a fair and unbiased hearing.” Lane Constr. Corp.,
2008 ME 45, ¶ 29, 942 A.2d 1202. For example, we concluded that because the
public had a full and fair opportunity to comment on an application, the planning
board proceedings satisfied due process requirements, despite the board’s request
11
for additional comments from the applicant without providing a contemporaneous
opportunity for public comment. Cunningham, 400 A.2d at 1078-79; see also
Anderson v. New England Herald Dev. Grp., 525 A.2d 1045, 1046 (Me. 1987).
However, a planning-board proceeding failed to satisfy due process requirements
where the board rendered a decision in which some members of the board
participating in the decision had not attended the hearings and had not “heard the
evidence and assessed the credibility of the various witnesses.” See Pelkey v. City
of Presque Isle, 577 A.2d 341, 343 (Me. 1990).
[¶18] Communications between a decision-maker and only one party,
without notifying the opposing party or providing that party with an opportunity to
be heard, are ex parte communications that implicate the due process rights of the
excluded party. See Mutton Hill Estates, Inc., 468 A.2d at 992; see also Black’s
Law Dictionary 316 (9th ed. 2009) (defining “ex parte communication”). We will
vacate a planning board’s decision if, as a result of these communications, the
decision results in “procedural unfairness.” Lane Constr. Corp., 2008 ME 45,
¶ 32, 942 A.2d 1202 (quotation marks omitted). Procedural unfairness refers to the
idea that the ex parte communication affects “the integrity of the process and the
fairness of the result.” Springfield Terminal Ry. Co. v. United Transp. Union,
767 F. Supp. 333, 349 (D. Me. 1991); see also Mutton Hill Estates, Inc.,
468 A.2d at 992. For example, a planning board’s decision to exclude members of
12
the public and the applicant during the board’s fact-finding proceedings violated
the due process rights of those excluded. Mutton Hill Estates, Inc., 468 A.2d at
992.
[¶19] The United States Court of Appeals for the District of Columbia
Circuit has described the analysis of this issue as follows:
[A] number of considerations may be relevant: the gravity of the
ex parte communications; whether the contacts may have influenced
the . . . ultimate decision; whether the party making the improper
contacts benefited from the . . . ultimate decision; whether the
contents of the communications were unknown to opposing parties,
who therefore had no opportunity to respond; and whether vacation of
the . . . decision and remand for new proceedings would serve a useful
purpose.
Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations Auth., 685 F.2d 547,
564-65 (D.C. Cir. 1982) (footnotes omitted); see also Springfield Terminal Ry. Co.,
767 F. Supp. at 349.
[¶20] Here, the court concluded that the email at issue did not taint the
Board’s decision. See Lane Constr. Corp., 2008 ME 45, ¶ 32, 942 A.2d 1202. We
agree. Although the abutters assert that Berwick Iron’s approval of MacMillan &
Donnelly influenced the Board’s decision on whom it would hire, that assertion is
unsupported by the evidence in the record. Rather, the email discloses that the
Board had already made its selection and merely sought Berwick Iron’s approval
because Berwick Iron would pay for the costs of the expert. Thus, the gravity of
13
the ex parte communication is limited. See Prof’l Air Traffic Controllers Org.,
685 F.2d at 565.
[¶21] Further, although Berwick Iron benefitted from the Board’s ultimate
approval of the conditional use permit, the role of the ex parte communication in
that approval is limited. The abutters had the full opportunity to respond to both
the selection of and the findings by the Board’s independent peer reviewer at the
public hearing on November 17, 2011. See Cunningham, 400 A.2d at 1078-79;
Prof’l Air Traffic Controllers Org., 685 F.2d at 565. Finally, vacating the Board’s
decision and remanding with instructions to hire a new independent peer reviewer
would not serve any purpose because, as discussed below, see infra ¶ 30, the Board
ultimately found Berwick Iron’s air emissions expert credible, and there is ample
evidence in the record to support the Board’s finding. See Prof’l Air Traffic
Controllers Org., 685 F.2d at 565. Therefore, the ex parte communication between
the Board and Berwick Iron does not require us to vacate the Board’s decision.
B. Air Emissions Standards
[¶22] In reviewing a planning board’s decision, we defer to the board’s
factual findings; “we do not substitute our own judgment for that of the Board,”
and will vacate its judgment only “if no competent evidence exists in the record to
support it.” Nestle Waters N. Am., Inc. v. Town of Fryeburg, 2009 ME 30, ¶ 33,
967 A.2d 702 (quotation marks omitted). “[T]he fact that the record before the
14
Board is inconsistent or could support a different decision does not render the
decision wrong.” Id. (quotation marks omitted). However, “[t]he interpretation of
a local ordinance is a question of law, and we review that determination de novo.”
Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 16, 868 A.2d 161; see also Isis
Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3 n.4, 836 A.2d 1285 (stating that
although we generally defer to a state agency’s technical expertise, “[w]e review
interpretations of local zoning ordinances by local volunteer boards de novo”).
[¶23] “In interpreting a statute or ordinance, we look first to the plain
meaning of its language to give effect to the legislative intent, and if the meaning
of the statute or ordinance is clear, we need not look beyond the words
themselves.” Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903.
“Words [in the ordinance] must be given their plain and ordinary meaning and
must not be construed to create absurd, inconsistent, unreasonable, or illogical
results.” Bushey v. Town of China, 645 A.2d 615, 617-18 (Me. 1994) (quotation
marks omitted).
[¶24] The abutters argue that (1) the Board erred in relying on a study that
based its evaluation on state and federal air quality standards; and (2) even if the
evaluation was based on standards that were more stringent than state and federal
requirements, the Board failed to make specific findings that the facility’s air
emissions would not be “injurious” or “detrimental to the enjoyment” of
15
neighboring properties. See Berwick, Me., Land Use Ordinance § 7.1
(Nov. 2, 2010). Section 7.1 of the Berwick Land Use Ordinance states:
Emission of dust, dirt, fly ash, fumes, vapors or gases which could be
injurious to humans, animals or vegetation, detrimental to the
enjoyment of adjoining or nearby properties or which could soil or
stain persons or property, at any point beyond the lot line of the
commercial or industrial establishment creating that emission, shall
not be permitted. Any air emissions must meet all applicable state
and federal statutes.
[¶25] The plain language of section 7.1 of the Berwick Land Use Ordinance
sets out a fixed test that prohibits three types of emissions: (1) “injurious”
emissions, (2) emissions “detrimental to the enjoyment of” neighboring properties,
and (3) emissions that “could soil or stain persons or property.” In its 2012
judgment, the court determined that “[i]f compliance with state and federal statutes
were sufficient[,] then the ordinance would have consisted solely of the second
sentence.” The court concluded that the Berwick ordinance must therefore be
more stringent than state and federal statutes.
[¶26] However, even if the ordinance does restrict more emissions than
state and federal laws, in the matter before us, the Board addressed those standards
and made findings, supported by the record, that the proposal met the ordinance
standards.
[¶27] The air emissions study that Berwick Iron provided to the Board
stated that the Board could rely on compliance with the Clean Air Act as evidence
16
that the project complied with the ordinance because the national ambient air
quality standards regulate the same types of emissions as those described in
Section 7.1 of the ordinance.4 In the Clean Air Act, Congress authorizes the
Administrator of the Environmental Protection Agency to establish the national
ambient air quality standards, which “in the judgment of the Administrator, . . . are
requisite to protect the public health,” and “to protect the public welfare from any
known or anticipated adverse effects associated with the presence of such air
pollutant in the ambient air.” 42 U.S.C.A. § 7409(b) (West, Westlaw through
P.L. 113-49). The Clean Air Act defines “welfare” as follows:
All language referring to effects on welfare includes, but is not limited
to, effects on soils, water, crops, vegetation, manmade materials,
animals, wildlife, weather, visibility, and climate, damage to and
deterioration of property, and hazards to transportation, as well as
effects on economic values and on personal comfort and well-being,
whether caused by transformation, conversion, or combination with
other air pollutants.
42 U.S.C.A. § 7602(h) (West, Westlaw through P.L. 113-49) (emphasis added).
Emissions that “could be . . . detrimental to the enjoyment of” neighboring
properties, Berwick, Me., Land Use Ordinance § 7.1, are very similar to those that
may have “effects on . . . personal comfort and well-being,” 42 U.S.C.A.
4
Although section 7.1 of the ordinance refers to both state and federal statutes, in 2011, the
Legislature repealed the Maine ambient air quality standards and amended the statute to provide that
Maine’s ambient air quality standards are equivalent to the national ambient air quality standards. See
P.L. 2011, ch. 206, § 19 (codified at 38 M.R.S. § 584-A (2012)). See also 42 U.S.C.A. § 7409
(West, Westlaw through P.L. 113-49) (providing for the establishment of the national ambient air quality
standards); Berwick, Me., Land Use Ordinance § 7.1 (Nov. 2, 2010).
17
§ 7602(h). Similarly, those emissions that “could soil or stain persons or
property,” Berwick, Me., Land Use Ordinance § 7.1, are analogous to those
emissions that have “effects on economic values,” 42 U.S.C. § 7602(h). Thus, the
Board did not err in relying on compliance with the national ambient air quality
standards to support its conclusion, in part, that the facility would comply with
section 7.1 of the Berwick ordinance.
[¶28] Although the Berwick Land Use Ordinance restricts the same types of
emissions as those regulated by federal law, the ordinance is more restrictive than
state and federal statutes in two ways. First, it has a broader scope. The Clean
Air Act requires the Administrator of the Environmental Protection Agency to
regulate those emissions that “cause or contribute to air pollution which may
reasonably be anticipated to endanger public health or welfare.” 42 U.S.C.A.
§ 7408(a)(1)(A) (West, Westlaw through P.L. 113-49). In exercising this
administrative discretion, the Environmental Protection Agency has enacted
detailed regulations of sulfur oxides, particulate matter, carbon monoxide, and
lead, among many others. See 40 C.F.R. §§ 50.4-50.18 (West, Westlaw through
Nov. 27, 2013). In contrast, the ordinance is not limited but applies to all air
emissions. See Berwick, Me., Land Use Ordinance § 7.1. Second, the ordinance is
more restrictive because it is fixed. If the federal standards and applicable state
standards are relaxed in the future to permit the three types of emissions described
18
in the Berwick ordinance, then section 7.1 of the ordinance imposes independent
requirements that must be met in addition to the state and federal standards.
[¶29] The Planning Board had sufficient evidence to conclude that Berwick
Iron’s proposed project met the standard in section 7.1. First, Berwick Iron
provided the Board with a copy of the air emissions license granted by the
Department of Environmental Protection for the proposed metal shredder. The
permit is evidence that, with regard to those sources regulated by federal law, the
emissions would meet section 7.1. Second, the study provided by Berwick Iron
provided a conservative analysis of the proposed emission levels in two ways: first,
by assuming the facility would operate twenty-four hours per day and 365 days per
year, and second, by employing more stringent state environmental standards that
have been repealed.
[¶30] In granting the air emissions license for this project, the Department
of Environmental Protection noted that the only emissions addressed in the license
were those from the diesel engine and from the water sprays released by the
shredder. Both Berwick Iron’s expert and the Board’s independent peer reviewer
agreed that in their professional judgment any emissions from other sources,
including other parts of the shredder, the conveyor belt, movement of metals in
sorting, storage, and separation, and road dust, would be minimal. As a result,
Berwick Iron’s expert concluded, and the Board’s independent peer reviewer
19
agreed, that the proposed project would not emit any of the three types of
emissions restricted in section 7.1. The Board concluded that, due to these
additional considerations, the proposed project would meet the requirements of
section 7.1 of the ordinance, and that conclusion is supported by ample competent
evidence in the record. See Nestle Waters N. Am., Inc., 2009 ME 30, ¶ 33,
967 A.2d 702.
C. Noise Standards
[¶31] The abutters argue that the Planning Board erred in concluding that
the proposed project would meet the provision of the Berwick Land Use Ordinance
governing noise because live sound tests indicated that the shredder exceeded the
maximum decibel levels set out in section 7.6 of the ordinance. The ordinance
provides: “The maximum permissible sound pressure level of any continuous,
regular or frequent source of sound produced by any activity shall be limited by the
time period and land use district” listed in the ordinance. Berwick, Me., Land Use
Ordinance § 7.6 (Nov. 2, 2010). The ordinance lists sixty decibels as the daytime
limit in residential districts and seventy-five decibels as the daytime limit in
industrial and commercial districts. Id. Further, section 7.6 provides an exception
for a single period of fifteen minutes per day, in which the applicant may exceed
the ordinary noise levels by up to ten decibels. Id.
20
[¶32] The parties dispute whether the applicable noise level is measured
from the place where the noise is generated, applying the decibel level that governs
the district in which the property is located, or whether the noise level is measured
wherever the noise can be heard. The abutters argue that, because the shredder
noise can be heard in the abutting residential district, the ordinance prohibits the
noise emitted from the shredder from exceeding sixty decibels as measured in the
residential district.
[¶33] We need not resolve this issue, however, because the evidence in the
record supports the Board’s determination that the shredder would meet the lower
sixty-decibel standard as measured at the neighboring property. The Board found
that “even if the Ordinance imposed a 60 [decibel] standard at an abutting
residential district line, the evidence shows that the project will meet that standard,
with only a single daily exception of less than 15 minutes, which is allowed by the
Ordinance.”
[¶34] During the live sound test, the abutters’ sound engineer recorded one
instance at the end of the hour-long test during which the sound level at a
neighboring property exceeded 60 decibels—measuring 61.4 decibels. A
representative of Berwick Iron testified that the sound levels increased during the
last few minutes of the sound test because the operators clear all of the metal out of
the machine when shutting down the machine, which causes an increase in the
21
noise levels. He further testified that the higher noise levels would occur only once
per day and would be completed within the fifteen-minute period during which the
operation is permitted to exceed the sound limitation by ten or fewer decibels. See
id. The decibel measurements taken by the abutters’ sound engineer supports the
Board’s finding, and, therefore, the Board did not err in determining that the
proposed metal shredder would meet the noise standard in the ordinance. See
Nestle Waters N. Am., Inc., 2009 ME 30, ¶ 33, 967 A.2d 702.
The entry is:
Judgment vacated. Remanded for entry of
judgment affirming the Berwick Planning Board’s
approval of the land use permit.
_______________________________________
On the briefs:
Matthew D. Manahan, Esq., Catherine R. Connors, Esq., and Dixon P. Pike,
Esq., Pierce Atwood LLP, Portland, for appellant Berwick Iron & Metal
Recycling, Inc.
Timothy S. Murphy, Esq., Prescott, Jamieson, Nelson & Murphy, LLC, Saco,
for appellees Robert Duffy, et al.
At oral argument:
Matthew D. Manahan, Esq., for appellant Berwick Iron & Metal Recycling,
Inc.
Timothy S. Murphy, Esq., for appellees Robert Duffy, et al.
York County Superior Court docket number AP-2012-6
FOR CLERK REFERENCE ONLY