Posted by: Patricia Salkin | December 25, 2013

ME Supreme Court Upholds Board’s Granting of Conditional Use Permit for Metal Shredder

Berwick Iron & Metal Recycling, Inc. (“Berwick”), operated a metal and automobile recycling business in Berwick, Maine. The facility had been operating under an existing conditional use permit for automobile recycling. Berwick applied for a conditional use permit to install and operate a metal shredder to process vehicles that had been flattened and drained of all fluids before arriving onsite. The shredder was powered by a 3,600 horsepower diesel engine, which was encased by concrete walls to muffle noise. A 45-foot stack protruded from the top of the engine encasement, through which the engine emitted diesel exhaust. In support of its application, Berwick submitted a noise study based on measurements taken at a similar facility in Connecticut, with anticipated noise levels meeting Town of Berwick’s ordinance (“ordinance”) requirements. A copy of the air emissions license granted to it by the Department of Environmental Protection was also provided. Abutting landowners who opposed the permit presented concerns to the Board citing harmful air emissions, noise produced by the shredder and the engine, and the toxic waste product generated.

The Board considered Berwick’s application in an informational meeting and in two public hearings. During its consideration the Planning Board conducted two site walks without inviting members of the public. The Board also adjourned a public meeting to hold a “workshop session” regarding Berwick’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 during the session. Additionally, Board members sent and received several emails from representatives of Berwick, and the Board did not send copies of the emails to the abutters and did not notify the public.

The Board unanimously voted to approve the conditional use permit and issued a written decision in which the abutters sought review in the Superior Court. The court vacated the Board’s decision, citing violations of the abutter’s due process rights and that the abutters did not receive a fair and unbiased hearing. The court also concluded that the Board made an error in applying the air emissions standard in the ordinance. On remand, the Board held a site walk that was open to the public and two public hearings. Both Berwick 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, the Board scheduled a live sound test of the shredder to allow both sides to take decibel measurements. Additionally, Berwick provided a study that analyzed the project’s potential air emissions and the results demonstrated that the project conformed to the ordinance. The abutting landowners also provided an adverse opinion of an emissions expert. Presented with this the Board decided to hire an environmental consulting firm to review both studies. The Board solicited estimates from three engineering firms to compare prices. The Town Planning Coordinator then contacted Berwick’s attorney, attaching the three proposals, with an email seeking Berwick’s approval because Berwick was required to pay for the costs of the expert. Neither the Planning Coordinator nor the Board informed the public or the attorney for the abutting landowners about this exchange.

After the Board received the results of the sound study and evidence from the independent reviewer, it voted again to approve the conditional use permit. The Board issued its written decision 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, without notifying the public or the abutters’ counsel, it violated the abutters’ due process rights. Additionally, the court found that the Board again made an error in applying its air emissions ordinance. The court remanded the case to the Board to determine whether the facility met the more stringent ordinance standard. Berwick appealed the court’s judgment to the Supreme Judicial Court.

The Supreme Judicial Court held that: (1) the ex parte e-mail to Berwick’s attorney did not taint the planning board’s decision to approve the permit and did not violate the landowners’ due process rights; (2) the board’s finding that the application met the ordinance standards was supported by evidence; and (3) evidence supported the board’s determination that the metal shredder would meet the ordinance’s maximum 60-decibel standard.

On the matter of due process, the landowners argued that their due process rights were violated. The court stated that both an applicant and members of the public who oppose a project are entitled under the Due Process Clause of the United States and Maine Constitutions to a fair and unbiased hearing. However, what constitutes due process in a planning board hearing 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. 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.
Although the landowners asserted that Berwick’s approval of the expert influenced the Board’s decision, it was unsupported because the email disclosed that the Board had already made its selection and merely sought approval. Thus, the gravity of the ex parte communication was limited. Further, 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 the matter of air emissions standards, the court stated that the Planning Board had sufficient evidence to conclude the project met the standard in the ordinance. First, Berwick provided the Board with a copy of the air emissions license granted by the Department of Environmental Protection. Second, the study 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. 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’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 would be minimal.

On the matter of noise standards, the landowner’s argued that the Planning Board made an error in concluding that the proposed project would meet the ordinance because live sound tests indicated that the shredder exceeded the maximum decibel levels. 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. Further, it provided 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. The parties argued whether the applicable noise level was 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 court stated that they did not have to resolve this issue, because the evidence in the record supports the Board’s determination that the shredder would meet the lower sixty-decibel standard. 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.”

The judgment was vacated and remanded for entry of judgment affirming the Berwick Planning Board’s approval of the land use permit.

Duffy v. Town of Berwick, 2013 WL 6328477 (Me. 12/5/2013)

The opinion can be accessed at:

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