Decision, judgment in Brayton Pt. case

What follows is the decision and judgment by Land Court Judge Robert B. Foster. The decision was converted from a PDF to a Word document, so some formatting is a bit off.

 

COMMONWEALTH OF MASSACHUSETTS

 

LAND COURT

 

DEPARTMENT OF THE TRIAL COURT

 

BRISTOL, ss MISCELLANEOUS CASE
NO. 20 MISC 000533 (RBF)
__________________________________________
)
BRAYTON POINT, LLC, )
)
Plaintiff, )
)
v. )
)
STEVEN CADORETTE, JAMES PIMENTAL, )
and JOSEPH FINGLISS, as they are Members of )
the SOMERSET ZONING BOARD OF APPEALS, )
and KATHLEEN SOUZA, individually, and )
NANCY THOMAS, individually, )
)
Defendants. )
__________________________________________) Consolidated with
) NO. 21 MISC 000155 (RBF)
BRAYTON POINT, LLC, )
)
Plaintiff, )
)
v. )
)
STEVEN CADORETTE, JAMES PIMENTAL, )
and JOSEPH FINGLISS, as they are Members of )
the SOMERSET ZONING BOARD OF APPEALS, )
and KATHLEEN SOUZA, individually, NANCY )
THOMAS, individually, and NICOLE )
McDONALD, individually, )
)
Defendants. )

__________________________________________)

 

 

DECISION

 

Introduction

 

Where the town of Somerset meets Mount Hope Bay, there is a peninsula (partially made up of filled tidelands) jutting into the bay known as Brayton Point. Across the water from the filled tidelands, forming a cove, lies a residential neighborhood. For many years, a coal-fired power plant operated at Brayton Point, spewing coal dust into the neighborhood. That plant closed in 2017; in 2018 the plaintiff Brayton Point, LLC (Brayton Point) purchased the property. Brayton Point contracted with a company that wished to operate a scrap metal business on the filled tidelands peninsula, bringing in scrap metal from various locations and loading it onto ships for transport. This operation required planned development approval under the Town of Somerset Zoning Bylaw (bylaw); the bylaw allows outside storage of materials “provided that all dust and fumes incident to storage or handling are effectively confined to the premises.” Bylaw § 4.2.6.b. Brayton Point obtained its approval in late 2019.

In 2020, the individual defendants Kathleen Souza and Nancy Thomas, residents of the neighborhood across the water, made enforcement requests to the building inspector, claiming that dust from the scrap metal operation was migrating to their properties, causing damage to their houses, their yards, and their health. After the building inspector denied their requests, they appealed to the Somerset Zoning Board of Appeals (ZBA), which ordered Brayton Point to cease and desist its operations until the building inspector approved a new plan to control the dust. Brayton Point appealed that decision, but at the same time sought to comply with the order by submitting a revised plan to the building inspector, who approved the plan. Ms. Souza, Ms. Thomas, and another neighborhood resident, Nicole McDonald, appealed that approval to the ZBA, which reversed the approval and renewed its cease and desist order. Brayton Point appealed that decision as well.

The two appeals were tried to me. The two primary issues at trial were whether Ms. McDonald, Ms. Souza, and Ms. Thomas were persons aggrieved with standing to appeal the building inspector’s decisions to the ZBA, and whether the ZBA correctly determined that Brayton Point’s operation did not effectively confine the dust from the scrap metal operation to the premises. Much of the dispute revolves around what the bylaw means when it requires dust to be “effectively confined” to the property, and whether the three individual defendants are really experiencing the effects of dust. After trial, I find that the standard under the bylaw is neither whether any dust at all escapes from the property (the ZBA’s so-called “no-dust” standard) or whether the dust is below the monitoring limits set by the plan incorporated in the 2019 decision, as Brayton Point contends. The bylaw does not require that no dust at all leave the property. However, if enough dust leaves the property so that its effects are seen and felt by the residents of the neighborhood, then Brayton Point has not effectively confined the dust to the property. Based on the evidence, I find that this is what has happened. Dust from the scrap metal operation is leaving the site and being blown into the neighborhood, where it causes harm to the property and health of the residents, including in particular Ms. McDonald, Ms. Souza, and Ms. Thomas. They have proved their aggrievement, and, based on the evidence, I find that the ZBA was justified in issuing its cease and desist orders. The two decisions of the ZBA will be affirmed, and judgment shall enter enjoining the scrap metal operation until the ZBA approves a plan for containing the dust.

 

Procedural History

 

Brayton Point filed the complaint in case no. 20 MISC 000533 (the 533 action) on December 1, 2020, naming as defendants the members of the ZBA, Ms. Souza, and Ms. Thomas. The 533 action is an appeal under G.L. c. 40A, § 17, of the ZBA’s decisions reversing the

Somerset Building Commissioner’s (commissioner/Paul Boucher) denials of Ms. Souza’s and Ms. Thomas’s enforcement requests. The ZBA filed its Verified Counterclaim (533 counterclaim), seeking enforcement pursuant to G.L. c. 40A, §§ 7 and 14 of its decisions, and the Somerset Board of Appeals Motion for Preliminary Injunction (PI motion) on December 8, 2020. Brayton Point filed Plaintiff’s Motion for Stay of Counterclaim Filed by Somerset Zoning Board of Appeals and Plaintiff’s Objection to Somerset Zoning Board of Appeals’ Motion for Preliminary Injunction on December 28, 2020. At a status conference on December 30, 2020, an evidentiary hearing on the PI motion was set down for February 25, 2021. Ms. Souza and Ms. Thomas filed their respective answers to the complaint and motions to join the counterclaim and the PI motion on January 11, 2021. Brayton Point filed its answer to the counterclaim, Plaintiff’s Motion to Dismiss the Verified Counterclaim Filed by Somerset Zoning Board of Appeals (motion to dismiss), and objection to Ms. Souza’s and Ms. Thomas’s motions to join the counterclaim on January 13, 2021. The ZBA, Ms. Souza, and Ms. Thomas filed their oppositions to the motion to dismiss on January 27, 2021. At a status conference on February 3, 2021, consideration of all motions was stayed and the evidentiary hearing taken off the list.

Brayton Point filed the complaint in case no. 21 MISC 000155 (the 155 action) on March 22, 2021, naming as defendants the members of the ZBA, Ms. Souza, Ms. Thomas, and Ms. McDonald. The 155 action is an appeal under G.L. c. 40A, § 17, of the ZBA’s decision granting the appeals of Ms. Souza, Ms. Thomas, and Ms. McDonald of the commissioner’s finding that Brayton Point had satisfied the obligations of the ZBA’s decision that is the subject of the 533 action. Ms. Thomas, Ms. Souza, and Ms. McDonald are referred to together as the “Individual Defendants.” The ZBA filed its Counterclaim (155 counterclaim) seeking enforcement of its decision granting the Individual Defendants’ appeal pursuant to G.L. c. 40A, §§ 7 and 14 on May 3, 2021. A case management conference in the 155 action and a status conference in the 533 action was held on April 7, 2021, and the two actions were consolidated. The ZBA renewed its interest in the PI motion, and the court indicated that it would likely accelerate the PI motion for trial pursuant to Mass. R. Civ. P. 65(b)(2). On April 27, 2021, the Individual Defendants each filed their answers to Brayton Point’s complaint in the 155 action, and the ZBA filed its counterclaim in the 155 action on May 3, 2021.

On July 2, 2021, Brayton Point filed Plaintiff’s Motion for Partial Summary Judgment (Brayton Point summary judgment motion), along with Plaintiff’s Memorandum of Law in Support of its Motion for Partial Summary Judgment and Plaintiff’s Appendix to its Motion for Partial Summary Judgment. On August 18, 2021, the ZBA filed Defendant Somerset Zoning Board of Appeals’ Opposition to Plaintiff’s Partial Motion for Summary Judgment.

The court took a view on August 18, 2021. On August 27, 2021, the Individual Defendants filed Defendants, Nicole McDonald, Kathleen Souza, and Nancy Thomas’ Motion for Summary Judgment (Individual Defendants’ summary judgment motion). Brayton Point filed Plaintiff’s Opposition to Individual Defendants Moton for Summary Judgment and Reply in Support of Plaintiff’s Motion for Partial Summary Judgment on September 8, 2021. On September 14, 2021, the ZBA filed Joinder of Defendant, Somerset Zoning Board of Appeals, in Co-Defendants’ Motion for Summary Judgment. The Brayton Point summary judgment motion and the Individual Defendants’ summary judgment motion were heard on September 15, 2021. At the hearing, the Brayton Point summary judgment motion was denied, and the Individual Defendants’ summary judgment motion was taken under advisement. On September 16, 2021, Defendants, Nicole McDonald, Kathleen Souza, and Nancy Thomas’ Joinder in Somerset Zoning Board of Appeals Opposition to Plaintiff’s Motion for Partial Summary Judgment and Individual

Defendants’ Reply in Support of Their Motion for Summary Judgment was filed. In a Memorandum and Order issued on September 27, 2021 (summary judgment order), the Individual Defendants’ summary judgment motion was denied.

Two pre-trial conferences were held on October 19, 2021, and on October 27, 2021. Defendant, Somerset Zoning Board of Appeals’ Motion in Limine to Preclude Testimony of Michael Lannon (ZBA motion in limine) was filed on October 25, 2021. The Joint Pre-Trial Memorandum was filed on October 26, 2021. Trial was held on November 1-3, November 15, and November 17, 2021. The November 3 trial session was held by Zoom; the other days of trial were in person. Exhibits 1-81 were marked. Testimony was heard from Nancy Thomas, Kathleen Souza, Nicole McDonald, Paul Boucher, Chris Vandermeer, Christopher Gordon, Elaine Pereira, Neil McLaughlin, Troy Joseph Miller, Denise Monroe, Paul Robert Levesque, Peter Pelletier, Alison Viana, Patricia Cabral, Dennis Champagne, Ann Seery, Edward Faria, Paige Belmore, Kimberly Johnson, Peter Geary, Todd Costa, Russell Becker, and Michael Lannan. The ZBA motion in limine was denied. At the close of evidence on November 17, 2021, the ZBA moved for directed judgment and for immediate injunctive relief. The motion was denied. At a status conference on November 18, 2021, the ZBA renewed its motion for preliminary injunction, and the court ordered Brayton Point to limit the hours of loading its next ship, and not to conduct any operations on Thanksgiving. At a status conference on December 3, 2021, the court ordered that Brayton Point was permitted to allow no more than 40 trucks per day to enter the property during weekdays, and further ordered that the trucks entering the property must be covered. At a subsequent status conference on December 17, 2021, the court ordered Brayton Point to limit loading of another ship during limited hours, to cease on December 23, 2021, and prohibited loading on December 24 or 25, 2021. On December 23, 2021, the hours Brayton Point was permitted to operate on that day were extended by one hour, but the remainder of the previous order stood.

The parties filed their post-trial briefs on December 15, 2021. The court held a Post Trial Hearing and heard closing arguments on December 20, 2021, by video conference and took the case under advisement. This Decision follows.

Facts

Based on the view1, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact:

Background

  1. Brayton Point owns an approximately 234-acre property in Somerset on Brayton Point Road, along Mount Hope Bay (the Brayton Point property). The Brayton Point property was originally used as a power station; the power station has been discontinued. Part of the Brayton Point property is a 12.5-acre area that is filled Commonwealth tidelands (site). These tidelands were filled under a license under G.L. c. 91 issued by the Massachusetts Department of Public Works to New England Power Company (N.E. Power), license no. 4186, dated January 26, 1959, and recorded in the Bristol (Fall River District) Registry of Deeds (registry) at Book 714, Page 60 (c. 91 license). The Commonwealth, through the Department of Public Works, then entered a lease for the site with N.E. Power as lessee, dated May 18, 1959, and recorded contemporaneously with the c. 91 license in the registry at Book 714, Page 64 (lease). Summary judgment order.
  • A view “inevitably has the effect of evidence, and information properly acquired upon a view may properly be treated as evidence in the case.” Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626, 629 n.5 (2018) (internal citations and quotations omitted); see also Martha’s Vineyard Land Bank Comm’n v. Taylor, No. 17-P-1277 (Mass. App. Ct. June 22, 2018) (unpublished decision).
  1. E. Power conveyed the Brayton Point property to USGen New England, Inc. by a Deed and Assignment of Lease dated August 21, 1998, and recorded in the registry at Book 3472, Page 212. The Brayton Point property was then conveyed to Dominion Energy Brayton Point, LLC by a Quitclaim Deed and Assignment of Lease dated December 28, 2004, and recorded in the registry at Book 5707, Page 161. Finally, the Brayton Point property was conveyed to Brayton Point by a Quitclaim Deed and Assignment of Lease dated January 18, 2018, and recorded in the registry at Book 9433, Page 29. This Quitclaim Deed and Assignment of Lease assigned the lease to Brayton Point, and provides that the “Granted Premises are conveyed and assigned subject to, and with the benefit of” the c. 91 license. Summary judgment order.
  2. During the time when the power plant was in operation and the site was used for storing coal arriving on ships, several residents testified that coal dust would blow onto their properties when ships were in. I credit this testimony. Testimony of Peter Pelletier (Tr. II-196), Edward Faria (Tr. III-59), Alison Viana (Tr. III-29).

 

  1. The power plant on the Brayton Point property closed in mid-2017. After its purchase, Brayton Point contracted with two businesses to use the property: a salt storage business, and a scrap metal storage and recycling business (scrap metal operation) operated on the site by Eastern Metal Recycling (EMR). Testimony of Nicole McDonald (Tr. I-143), Chris Vandermeer (Tr. II-20), Exh. 2.

 

  1. Between the time that the power plant was shuttered and the scrap metal operation began, the residents uniformly testified that they never had issues with dust on their property. A resident of the neighboring town of Swansea, Ann Seery, made the same observation. I credit this testimony. Testimony of Troy Joseph Miller (Tr. II-141), Paul Robert Levesque (Tr. II-182), Peter Pelletier (Tr. II-196), Alison Viana (Tr. III-25), Patricia Cabral (Tr. III-35, III-36), Dennis Champagne (Tr. III-43-44), Ann Seery (Tr. III-72), Edward Faria (Tr. III-59-60); Kathleen Souza (Tr. I-140).

 

  1. The scrap metal operation began at Brayton Point in summer or fall 2019. The scrap metal operation consists generally of the following: trucks bring in loads of scrap metal, from an unknown number of sources, which are dumped and stored on the site. Large machinery with grapples then sort the scrap into three piles based upon size of the scrap (“shred, HMS No. 1 and plate steel.”) When a ship docks at the site, scrap metal is loaded onto the ship day and night (sometimes 24 hours a day) until the ship is full and sets sail. Thomas testimony (Tr. I-51), Souza testimony (Tr. I-109), McDonald testimony (Tr. I-143), Vandermeer testimony (Tr. II-19-20, II-21, II-25, II-58-59, II-80), View.

 

  1. Brayton Point applied to the ZBA on September 26, 2019, for planned development approval pursuant to § 6.10 et seq. of the bylaw for the use of the site for a scrap metal wholesale storage and transport business and a salt wholesale storage and transport business (petition). In the petition, Brayton Point listed itself as the owner of the Brayton Point property, including the site. Brayton Point’s proposed use of the site constituted the as-of-right use of wholesale business or storage under § 4.2.6.b of the bylaw. Specifically, the bylaw describes the as-of-right use as [w]holesale business or storage where part of all of the goods are stored outside a structure, provided that a fence of woven board type, split sapling type, picket type with pickets not more than 3 inches apart, or thick evergreen hedge 6 feet high is erected on any side of the lot directly abutting a residence or open recreation district and further provided that all dust and fumes incident to storage or handling are effectively confined to the premises. (emphasis supplied). Exhs. 1, 78, 80.

 

  1. In Decision No. 29 of 2019, filed with the Town Clerk on January 7, 2020, the ZBA approved Brayton Point’s petition, subject to conditions (2019 decision). Brayton Point did not appeal the 2019 decision, and the time to do so has long since expired. Exhs. 1, 2.

 

  1. The conditions relevant to this case concern nuisance control of the scrap metal operation, particularly the control of dust leaving the site. These controls are found in condition 8 of the 2019 decision, as follows:
    1. The Scrap Metal Business2 . . . shall be conducted at all times in accordance with the Fugitive Nuisance Control Plan (FNCP) as submitted and finally amended as Attachment 3 to the December 16, 2019 submission of Markey & Gauvin in support of the [p]etition. In addition, the following actions must be taken:

 

Dust

 

  1. Pursuant to Section 4.2.6.b of the [bylaw], no dust or fumes incident to storage or handling of scrap metal . . . shall leave the [s]ite. This applies to all aspects of the scrap metal . . . operations, including maintenance of the scrap metal . . . piles; loading and unloading . . . metal from and onto ships and trucks for transport, and transport of materials onto and off the [s]ite.

 

  1. Water sprinkler systems (misting cannons) or similar effective methods, shall be used to contain all dust from the Scrap Metal Business to the [s]ite. Use of dust control shall not be limited to loading and unloading.

 

  1. All vehicles transporting scrap metal . . . to and from the [s]ite shall be fully covered, and shall be sufficient to prevent any material, including dust, from escaping during transport.

 

  1. Loading and unloading operations shall be immediately suspended by the Petitioner or the respective Businesses3 upon good evidence known to it that dust incidental to storage and handling is not being contained to the [s]ite. Such operations may resume when the reason for the violation has been identified and corrected. The Petitioner and/or Businesses shall provide immediate written notice to the [commissioner] of such evidence and the corrective action taken.

 

  1. Repeated failure to contain dust to the [s]ite shall be good cause for suspending operation of the responsible Business by order of the [commissioner] until the [commissioner] is satisfied that measures have been implemented sufficient to ensure that such violations will not reoccur. . . .

 

  • The “Scrap Metal Business” is defined in the 2019 decision as the “scrap metal wholesale storage and transport [use], to be conducted by EMR,” i.e., the scrap metal operation. Exh. 2.

 

  • “Businesses” refers to the scrap metal operation and the salt storage business at the site. Exh. 2.

Monitoring

 

  1. Dust. The Petitioner shall provide for expert monitoring of dust resulting from operations at the [s]ite in the manner carried out by Pine Environmental Services, LLC, as set forth in the Fugitive Dust Monitoring report submitted to the Board on December 16, 2019, as modified by December 6, 2019 letter to the Board from Markey & Gauvin responding to “zoning” comments of the Town’s consultant, Fuss and O’Neill. Such monitoring shall take place for a period of no less than four continuous days of operation for the Scrap Metal Business . . . during which loading and unloading operations are being conducted, in each of the first twelve months of operation. The results of such monitoring shall be reviewed daily by the persons in charge of the respective Businesses on the [s]ite, and shall be made available to the [commissioner] upon request. In the event dust is not being contained to the [s]ite at any time as required, the [commissioner] may require such further monitoring as is necessary in his judgment to ensure compliance. Monitors shall be located as provided in the December 6, 2019 correspondence referenced above, provided that at least one on-[s]ite monitor shall always be located at the furthers edge of the [s]ite downwind from [s]ite operations, and one monitor shall always be located at the south end of Perkins Street or equivalent off-site residential location down from [s]ite operations. Monitors shall be re-located as the [commissioner] may reasonably direct to ensure accurate results. The Businesses shall not commence operations at the [s]ite until the [commissioner] has confirmed that the monitoring equipment is in place and ready for use.

 

Exhs. 1, 2.

 

  1. The Fugitive Nuisance Control Plan as approved in the 2019 decision (original FNCP) was prepared by Patriot Stevedoring (Patriot), the entity managing the site on behalf of Brayton Point. With respect to the control of dust at the site, the original FNCP provided:

 

  • Patriot will engage an environmental consultant to perform ambient dust monitoring during loading of vessels moving cargoes that are known to produce dust.

 

  • Dust monitoring will be performed in the adjacent downwind residential areas at two locations each day. Dust monitoring will be performed 24 hours per day from start to completion of the vessel loading, which is estimated to take four days. The dust monitors will be automated so that the project team can be notified if dust concentrations exceed the action level. The action level will be set at 150 µg/m3 for a 15-minute average which is the Environmental Protection Agency’s National Ambient Air Quality Standard (NAAQS) for respirable particulate matter less than 10 microns in diameter (PM-10). In the event of an action level exceedance, the project team will be notified via text message or email, and response actions will be taken if dust is caused by vessel loading operations. Dust reduction techniques include covering piles with plastic sheeting, or spraying water on the work area to suppress the dust.

 

 

11

 

 

  • Dust monitors will be set/staged by an environmental consulting firm (GEI Consultants).

 

  • 2x Dust monitors will be located within Operational Zone/Dock Perimeter where cargo is handled.

 

  • 2x Dust monitors will be located at sites within the residential areas nearest to the cargo operations.

 

  • These will be set up prior to loading/discharge operations commencing and removed after completion of cargo loading/discharging operations.

 

  • The dust monitors will be automated to notify Patriot’s on shift supervisor (via text) in the event an actionable level is exceeded.

 

 

 

 

  1. In addition to the dust control requirements, the 2019 decision also included a condition that “all truck beds, containers, and bodies shall be covered when entering and leaving the site.” Exh. 2, page 13.

 

  1. Chris Vandermeer, the general manager of the port at Brayton Point, testified as to the operations during the past year during which he has worked there, approximately 60 hours per week. I credit his testimony. Approximately 50 trucks a day enter the site to deliver loads of scrap metal.4 The trucks stop at a security shack, where a guard checks to make sure the truck bed is “tarped” or covered. The trucks drive over rumble strips to shake some dust off the tires, then follow a designated road that is wetted periodically with water trucks to the scrap piles. Because the entire property is graded with crushed demolition materials from the old power plant, primarily concrete, driving over the surface generates dust. The drivers are then directed to dump their loads near the scrap pile. That dumping process produces a plume of dust, which is not sprayed down. On windy days, the trucks dump on the lee, or non-windy side, of the scrap pile. Employees then sort the delivered scrap into three piles, sorted according to the scrap size, from plate metal down to “shred.” The piling of scrap metal by the grapples produces dust plumes.

 

  • The court’s post-trial order of December 3, 2021, limited the number of trucks to 40 trucks per day. 12

 

The piles stand between 30- 40 feet tall. Water cannons are used 24 hours before the ships arrive, to “wet down” the piles, and misting cannons are used during the loading of ships, but are not used while grapples are tossing scrap onto the piles. Testimony of Chris Vandermeer (Tr. II-17-21, II-23, II-25-26, II-27-28, II-41, II-57-61), Michael Lannan (Tr. V-89); Exh. 60-1, 60-3-9; Exhs. 51-54; Exh. 65.

 

  1. Under the original FNCP, the scrap was loaded onto ships simply by grabbing it from the pile with a grapple on a crane and dropping scrap directly into the hold of the ship. Testimony of Chris Vandermeer (Tr. II-25), Neil McLaughlin (Tr. II-227); Exh. 58; View.

 

  1. Patriot contracted with GEI Consultants, Inc. (GEI) to perform dust monitoring. GEI set up one dust monitor on the site and one dust monitor in the neighborhood to measure dust at the PM10 level, with an actionable limit set at 150 microns per cubic meter, or µg/m3, over a 15-minute average. This means that the monitor measured dust particles the size of PM10, or 10 microns, taking a measurement each minute, and would trigger an alert if the average level over a 15-minute interval was 150 µg/m3 or higher. The first measurements of the monitoring station appear to have been taken February 25-28, 2020, when a ship was being loaded at the site. Exh. 33; Vandermeer Testimony (Tr. II-29); Testimony of Christopher Gordon (Tr. II-95-96, II-97-98, II-100).

 

  1. Before the scrap metal operations began, Brayton Point did not conduct any background testing of PM10 or PM2.5 (particles the size of 2.5 microns). However, in early 2019, Brayton Point did hire GEI to conduct testing of PM10 levels before, during, and after implosion of structures at the former coal-fired plant near the site. To do so, GEI set up four PM10 monitoring stations, including one at roughly the same location as the existing PM10 monitor near the scrap piles. Based on that monitoring, background levels of PM10 at the Brayton Point property were 5 µg/m3 on March 22 and 24, 2019, and 9 µg/m3 on April 26, 2019. Exh. 46.

 

  1. According to expert witness Michael Lannan, PM10 and PM2.5 are not visible dust, because the particles are too small; the particles would appear in high concentrations as a “gray screen,” and affect the opacity of the sky. Lannan Testimony (Tr. V-40, V-42).

 

  1. The GEI dust monitors only measure PM10 dust concentrations, and do not measure PM2.5 dust concentrations. Nor do the monitors measure the makeup of the PM10 particles: they could be pollen, water droplets, salt, roadway dust, or scrap metal dust. While it is possible to estimate the amount of PM2.5 dust concentrations in the air from PM10 readings, it is more accurate to measure PM2.5 dust directly. Lannan Testimony (Tr. V-48, V-51, V-170-171), Gordon Testimony (Tr. II-97, II-116-117).

 

  1. According to Mr. Lannan, while dust particles larger than PM10 tend to settle out rather than stay suspended in the air due to their weight, in high winds it would be possible for larger dust particles to become airborne and blown across the water from the site into the residential neighborhood. I credit this testimony. Lannan Testimony (Tr. V-78-79, V-149. V-219-220).

 

  1. Brayton Point was told by United States Environmental Protection Agency (EPA) inspectors on September 29, 2020, that the PM10 monitors would not pick up metal dust, which is “normally approximately 50 ug in diameter.” Exh. 29.

 

  1. In evidence are monitoring reports from GEI which include raw data taken from the PM10 monitors during times ships were being loaded from February 2020 to early January 2021. A table summarizing the 24-hour maximum 15-minute averages is included below as Exhibit A. Based on a review of the chart, it does not appear that there was any improvement in the PM10 readings over time. If anything, the 24-hour maxima actually increase over time. Exhs. 33-44.

 

  1. During the loading of one ship in July of 2020, the Town’s engineer, Fuss & O’Neill, conducted simultaneous PM10 monitoring. Fuss & O’Neill placed their monitor near the GEI neighborhood monitor. A table comparing the monitoring results for three periods is attached as Exhibit B. The results from the monitors are so different—at times reading a difference of 70 µg/m3—that I find the results of both monitors to be unreliable. At times, the Fuss & O’Neill monitor registers higher concentrations of PM10, and vice versa. I find, therefore, that the GEI monitoring is inadequate to show that there was not a significant amount of dust reaching the Brayton Point neighborhood from the site. Exhs. 12, 38.

 

  1. The only time that PM10 dust monitoring was conducted by GEI when a ship was not in port was from August 22, 2020, to September 28, 2020. GEI’s neighborhood monitor measured 15-minute averages of over 100 µg/m3 on two separate days, and recorded PM10 levels above 40 µg/m3 for 8 hours on two other occasions. While I do not credit the accuracy of the data, the data also does not demonstrate that dust was not migrating off of the property. Exh. 45.

 

  1. The Town of Somerset retained a company called SAGE Environmental, Inc. (SAGE) to analyze the contents of the dust and to monitor dust emissions from the site. SAGE produced a report summarizing that monitoring work. The SAGE report included some monitoring of fugitive dust emissions, measured in PM2.5, taken from December 2020 to January 2021. Mr. Lannan testified that PM2.5 would not be produced in significant quantities with this type of scrap operation, without some sort of grinding or crushing process on-site. Due to the lack of detail in the charts produced (including the absence of a clear timescale), I do not credit this dust emissions data, and do not find it helpful in determining the questions before me. Exh. 13, Lannan Testimony (Tr. V-49).

 

  1. As discussed, the site is filled tidelands that extend into Mount Hope Bay, forming a peninsula connected to the remainder of the Brayton Point property. To the south of the site is the bay and ocean. To the north of the site, across a smaller cove, is a residential neighborhood in which Ms. McDonald, Ms. Souza, and Ms. Thomas reside (Brayton Point neighborhood). Those residents from the Brayton Point neighborhood who testified at trial will be referred to generally as “residents.” View.

 

  1. Thomas has resided at 71 Ripley Street, Somerset, since 1972. Her house sits on the water, directly across from the site. She has a full view of the site from her property. From her bedroom and living room, she can see the scrap metal pile and the ships into which the scrap metal is loaded. Ms. Thomas testified that dust accumulates on her property: on the deck at the water, on her windows, and on her house. This dust is rust-colored, and can be seen accumulated in a dog-water bowl and a bird bath on her property. Ms. Thomas keeps her windows closed to keep the dust out of her house. She no longer uses her patio on the water. She has experienced health issues, including shortness of breath requiring her to use an inhaler, and elevated levels of mercury. Ms. Thomas’s observations have occurred both before and after the cease and desist order was lifted on December 31, 2020, and have continued up to the trial, on “most days.” I observed the dust at the view. I credit her testimony about the effects of dust on her and her property. Exhs. 49-14, 49-15, 49-17; view; Thomas testimony (Tr. I-50, I-51-52, 53-55, 57-58, 63-64).

 

  1. In addition to the dust she has observed on her property, Ms. Thomas testified that she has observed trucks entering the Brayton Point property uncovered, in violation of decision 2019. The commissioner also observed trucks leaving the property uncovered, and notified Brayton Point’s agents of the violation by email in May of 2020. I credit Ms. Thomas’s observations, and find that, during the period of the original FNCP, trucks routinely entered and exited the property without tarping. Thomas testimony (Tr. I-85-86), Exh. 22.

 

  1. Souza has resided at 130 Pacasset Street, Somerset for 30 years. Her house is in the same neighborhood as Ms. Thomas’s house. Her house does not sit on the water, but is farther inland, 1,000-2,000 feet from the site. She can see the scrap metal operation from her bedroom window. Ms. Souza testified that orange dust accumulates on her upstairs window, her kayak, and her birdbath. She has a metallic taste in her mouth and irritation in her eyes when the wind is blowing from the site. She has experienced an exacerbation of her asthma, so that she has more difficulty breathing and is having asthma attacks on humid days. She is using daily medication rather than a rescue inhaler. Ms. Souza’s observations have occurred at least weekly both before and after the cease and desist order was lifted on December 31, 2020, and continued until the day of trial. If anything, Ms. Souza believes the dust problem has gotten worse since the cease and desist order was issued. I observed the dust at her property at the view. I credit her testimony about the effects of dust on her and her property. View; Souza testimony (Tr. I-108, I-110, I-112-116, I-117, I-128, I-131); Exh. 55.

28. McDonald has lived at 30 Admiral’s Way, Somerset, since 2014. Her home sits on the water, but is farther from the site than is Ms. Thomas’s house. She estimates that her home is approximately ½ mile from the site. She can see the dock at the site from her kitchen window. She has observed dust on her windows, her deck furniture, and her vehicles. She has observed dust in the air and in the water. She has experienced irritation in her eyes, nose, and throat. Ms. McDonald’s observations have occurred both before and after the cease and desist order was lifted on December 31, 2020. I credit her testimony about the effects of dust on her and her property. I also credit her belief that the dust is generated by the scrap metal operation at the site. View; McDonald testimony (Tr. I-143-145).

  1. Multiple residents complained of dust of varying colors settling on their homes (windows and doors), patio furniture, vehicles, and yards, since the scrap metal operation began in 2019. Testimony of Troy Joseph Miller (Tr. II-140-141, II-145-146, II-149-150), Denise Monroe (Tr. II-171-172), Paul Robert Levesque (Tr. II-179-180), Peter Pelletier (Tr. II-193-194), Alison Viana (Tr. III-13-14, III-18), Patricia Cabral (Tr. III-34-35), Dennis Champagne (Tr. III-41-43), Ann Seery (Tr. III-53), and Edward Faria (Tr. III-58-59); Exhs. 63, 68, 69-1 – 69-6, 70. Residents testified they see dust being kicked up by the scrap metal operation daily. Testimony of Denise Monroe (Tr. II-164, II-171), Paul Robert Levesque (Tr. II-178), Peter Pelletier (Tr. II-193-195), Alison Viana (Tr. III-13, III-25), Patricia Cabral (Tr. III-36-37), Ann Seery (Tr. III-70), Exh. 67. Many of the residents see dust plumes from metal being tossed onto the piles, and others observe it directly when trucks dump scrap deliveries on the site, and when the trucks drive across the site. Testimony of Denise Monroe (Tr. II-164), Paul Robert Levesque (Tr. II-178-179), Peter Pelletier (Tr. II-193, II-194-195), Alison Viana (Tr. III-12-13, III-30), Patricia Cabral (Tr. III-36-37), Ann Seery (Tr. III-55, III-69, III-70), and Edward Faria (Tr. III-61, III-63); Exhs. 52, 60. According to resident Peter Pelletier, dust will sometimes come directly off the pile on hot and dry days in a strong wind, but that the dust usually results from active work at the site. Testimony of Peter Pelletier (Tr. II-194, II-196-197). Edward Faria has also seen dust come off the piles on windy days. Testimony of Edward Faria (Tr. III-58). Residents have observed dust billowing in streetlights when operations are going on after dark. Testimony of Denise Monroe (Tr. II-166), Peter Pelletier (Tr. II-195); Exhs. 64-66. At times, residents have experienced a gritty taste in their mouths, and a metallic smell. Testimony of Denise Monroe (Tr. II-166), Peter Pelletier (Tr. II-196), Alison Viana (Tr. III-14-15), Patricia Cabral (Tr. III-35). As a result of all the dust, several residents testified that they must leave their windows closed, do not go outside of their homes much, cannot enjoy their yards or host guests, and are worried about letting their pets and animals roam their yards. Testimony of Denise Monroe (Tr. II-172), Paul Robert Levesque (Tr. II-181-182), Peter Pelletier (Tr. II-198-199), Alison Viana (Tr. III-15, III-26), Patricia Cabral (Tr. III-35-36, III-37-38), Dennis Champagne (Tr. III-41, III-43-44), Edward Faria (Tr. III-64-65). I credit the residents’ experience of dust.5

 

  1. One resident, Denise Monroe, testified that her daughter, who is allergic to metals, suffered an asthma attack when they went outside for a walk in March of 2020, while a ship was being loaded. Testimony of Denise Monroe (Tr. II-165-166). I credit this testimony.

 

  • Having credited those witnesses, I do not credit the conflicting testimony of Paige Belmore, Kimberly Johnson, and Peter Geary.
  1. Another resident reported that his asthma has progressed into chronic obstructive pulmonary disease (COPD) and emphysema. Testimony of Paul Robert Levesque (Tr. II-180-181). Several residents also reported that they or their family members had developed coughs, throat irritation, bronchitis, or asthma over time. I credit this testimony. Testimony of Denise Monroe (Tr. II-164), Peter Pelletier (Tr. II-196), Alison Viana (Tr. III-26), Patricia Cabral (Tr. III-35, III-36).

 

  1. On July 27, 2020, Ms. Souza filed a written complaint with the commissioner, alleging a violation of the 2019 decision for dust leaving the property. The commissioner denied the complaint on August 3, 2020. On August 13, 2020, Ms. Souza filed a petition with the Town Clerk to appeal the denial to the ZBA. Exhs. 1, 3.

 

  1. On July 31, 2020, Ms. Thomas filed a written request for enforcement with the commissioner, alleging a violation of the 2019 decision for a scrap metal truck traveling onto the site uncovered. The commissioner denied the request for enforcement on August 26, 2020. Ms. Thomas also filed a request for enforcement with the commissioner on August 18, 2020, alleging a violation for dust leaving the property, which the commissioner denied on August 25, 2020. On August 31, 2020, Ms. Thomas filed a petition with the Town Clerk to appeal the commissioner’s denials to the ZBA. Neither Ms. Souza nor Ms. Thomas filed a certified copy of their appeal with the commissioner. Paul Boucher, the commissioner at the time, testified that he was provided with copies of the appeal forms by the Town Clerk. I credit this testimony. Exhs. 1, 4; Souza testimony (Tr. V-19-20), Thomas testimony (Tr. I-51), Boucher testimony (Tr. I-224-225).

 

  1. After a public hearing, the ZBA voted to grant Ms. Souza’s petition, resulting in Decision No. 26 of 2020 (decision 26), and to grant Ms. Thomas’s petitions for both dust emissions and uncovered trucks entering the site, resulting in Decision No. 29 of 2020 (decision 29). Decisions 26 and 29 contain the following order:

 

Brayton Point LLC will suspend all operations authorized by [the 2019 decision]. Brayton Point LLC will be required to submit a plan to the Building Commissioner detailing what measures and monitoring will be implemented to ensure that such violations will not reoccur. The Building Commissioner will not allow operations to resume until he is satisfied that the measures will be sufficient to ensure that such violations will not reoccur.

 

Both decisions were filed with the Town Clerk on November 24, 2020. Exhs. 1, 5, 6.

 

  1. Pursuant to decisions 26 and 29, the commissioner issued a cease and desist order to Brayton Point on November 24, 2020. The cease and desist order carries a fine of $300.00 a day for violating the order. Exh. 7.

 

  1. On December 1, 2020, Brayton Point appealed decisions 26 and 29 to this court, in the 533 action. Exhs. 1, 8.

 

  1. Paul Boucher was the commissioner until August of 2021. He testified that when the cease and desist order issued in November 2020, he first contacted Neil McLaughlin from Patriot to hold a meeting to develop a modified fugitive nuisance control plan (modified FNCP). He also invited Steven Cadorette, a member of the ZBA, who declined. A representative from Fuss & O’Neill, not an engineer, was present at their meeting, as was Chris Vandermeer. Mr. McLaughlin presented a plan at their meeting, which Mr. Boucher sent to Fuss & O’Neill for their review. Once Fuss & O’Neill approved the updated plan, Mr. Boucher lifted the cease and desist order. Mr. Boucher testified that in reviewing the updated plan, he never actually looked at the 2019 decision, but that he was not enforcing a “no dust” standard. Rather, Mr. Boucher was relying upon the GEI monitors to conclude that dust was not leaving the site. I credit this testimony. McLaughlin Testimony (Tr. II-225-227, IV-32-33, IV-97), Boucher Testimony (Tr. I-180-181, I-182-183, I-191-192, I-206, I-207-208, I-215-218, I-220); Exh. 8.

 

  1. On December 31, 2020, the commissioner approved the modified FNCP and released the cease and desist order. Exhs. 1, 8.

 

  1. McLaughlin helped put together both the original FNCP as well as the modified FNCP. In drafting the modified FNCP, he added actions that Brayton Point had already taken in order to improve operations. The main changes were (a) changing the ship loading method from using grapples to using skip pans (metal tubs used to lift loose material by crane) to prevent material from falling into the water; (b) presoaking the scrap pile with cannons 24-48 hours before the arrival of ships; (c) more stringent measures in training guards and enforcing protocol for infractions for non-tarped trucks at the gatehouse; (d) implementing dedicated haul roads for truck deliveries with increased water truck usage to keep the road dust down; (e) increasing weather monitoring; and (f) instituting a warning level of 100 µg/m3 for the dust monitoring stations. By presoaking the piles before loading the ships, the material is less likely to become airborne when it is moved, resulting in less dust. Dust that is weighted down by water falls out of the air faster than dry dust, which can be blown further distances. McLaughlin Testimony (Tr. II-224, II-225-229, II-231, II-233-234, IV-106-107), Vandermeer Testimony (Tr. II-21, II-23, II-25-29, II-30), Lannan Testimony (Tr. V-89, V-90); Exh. 15; View.

 

  1. When ships are in port, Mr. Vandermeer relies upon the dust monitors, which alert him when PM10 levels reach 100 µg/m3. He says he has only received that alert 2-3 times in the year he has worked on the property. When ships are not in port, Mr. Vandermeer runs the water trucks along the delivery roads, and also relies on the dust monitors. Testimony of Chris Vandermeer (Tr. II-25-26, II-29-30).

 

  1. Under the modified FNCP, operations are adjusted for the daily weather patterns; however, while Mr. Vandermeer likes to stop crane operations for sustained winds of 25-30 miles per hour, there is no set wind speed at which he ceases other operations. Because of its location on the water, wind speeds can be considerable—Mr. Vandermeer testified they experienced gusts of up to 50 miles per hour. Operations have only been halted due to weather six or seven times since January of 2020. Testimony of Chris Vandermeer (Tr. II-26-27, II-81-84), Neil McLaughlin (Tr. IV-65-66).

 

  1. The wind generally blows from south to north most of the year in Somerset, and the site is generally south of the Brayton Point neighborhood. View; McDonald Testimony (Tr. I-145), Vandermeer testimony (Tr. II-81-82), Levesque Testimony (Tr. II-183), Pelletier Testimony (Tr. II-193), Viana Testimony (Tr. III-26), Faria Testimony (Tr. III-64), McLaughlin Testimony (IV-66-67), Lannan Testimony (Tr. V-218).

 

  1. On January 14, 2021, Ms. Souza, Ms. Thomas, and Ms. McDonald filed appeals of the commissioner’s December 31, 2020, decision to release the cease and desist order. Neither Ms. Souza, Ms. Thomas, nor Ms. McDonald filed a certified copy of their appeal with the commissioner. The commissioner received copies of the appeals from the Town Clerk. After a public hearing held on February 18, 2021, the ZBA voted to grant the petitions, and overturned the decision of the commissioner to release the cease and desist order, resulting in Decision Nos. 7, 8, and 9 of 2021 filed with the Town Clerk on March 8, 2021 (decisions 7-9). The commissioner reinstituted the cease and desist order on February 19, 2021. On March 22, 2021, Brayton Point timely appealed decisions 7-9 to this court in the 155 action. Exhs. 1, 9, 10, 11; McDonald testimony (Tr. V-14-15), Boucher testimony (Tr. I-224).

 

  1. Since the 2019 decision, Brayton Point has never ceased operations of the scrap metal operation, except for perhaps one day after the cease and desist order in November 2020. Testimony of Paul Boucher (Tr. I-222), Chris Vandermeer (Tr. II-79), Neil McLaughlin (Tr. IV-67-68).

 

  1. One resident testified that the dust accumulating on his house seems to have gotten worse in the past year. Testimony of Troy Joseph Miller (Tr. II-151-152). Others have testified that the dust problems have been about the same over time, but are worse when the wind is blowing from the south towards the Brayton Point neighborhood. Testimony of Paul Robert Levesque (Tr. II-183-184), Peter Pelletier (Tr. II-194, II-195-196), Alison Viana (Tr. III-13, III-26), Dennis Champagne (Tr. III-42-43). I credit this testimony.

 

  1. Neither Brayton Point, the ZBA, nor the Individual Defendants have conducted conclusive testing to determine whether the dust that is accumulating on the residents’ homes is coming from the scrap metal piles. Brayton Point’s representatives admitted they do not know the chemical makeup of the dust that comes off of the scrap piles, nor do they know where the scrap comes from. Testimony of Neil McLaughlin (Tr. IV-55-57, IV-64-65), Chris Vandermeer (Tr. II-85-86), Michael Lannan (Tr. V-214-216).

 

  1. SAGE, the company retained by the Town of Somerset, took some swipe samples from outdoor patio furniture in the Brayton Point neighborhood. Exh. 13. Samples were taken on two dates, at two different locations: October 2, 2020, at 112 Carey Street, and January 13, 2021, at 285 Carey Street. Two of three samples taken on October 2, 2020, detected the following heavy metals: arsenic, barium, cadmium, chromium, lead, and mercury. Two of six samples taken on January 13, 2021, detected antimony, barium, chromium, lead, lithium, nickel, and zinc; one sample also detected arsenic and cadmium. Exh. 13.

 

  1. Lannan testified that the materials one would expect to find emanating from a defunct coal-fired plant included arsenic, chromium, cadmium, and beryllium, but that a scrap metal pile would likely produce iron-based alloys and aluminum alloys. He also acknowledged that a scrap pile with unknown metal contents, and especially auto-fluff (a dusty product of shredded motor vehicles), could contain arsenic, barium, cadmium, lead, mercury, nickel, lithium, and zinc. Mr. Lannan admitted that all of these metals are listed as hazardous air pollutants under the Federal Clean Air Act. He also noted that the concrete dust generated from the gravel roadways could contain silica, which is also regulated by the EPA. I credit this testimony. Lannan Testimony (Tr. V-98-100, V-207-211, V-213-214, V-223-225, V-227-229); Exh. 13.

 

  1. Lannan also testified that Brayton Point’s pile of shredded metal “definitely” contains shredded motor vehicles. I credit this testimony. Lannan Testimony (Tr. V-227, V-229).

 

  1. Lannan testified that a “zero dust” standard would be virtually impossible to satisfy, because dust is everywhere and almost all activities produce dust. He expected dust in the neighborhood could come from “the wetlands, the soils,…the ocean” and from other portions of the Brayton Point property. Even for dust-producing industrial activities within buildings, there is a limit to the technology that can control dust from leaving a building. This is why background dust testing is important to establish what the existing ambient dust levels exist at a site before operations begin. Exh. 81, Lannan Testimony (Tr. V-42, V-49, V-75, V-85, V-91-92). I credit this testimony.

 

  1. I find, based upon all of the credible testimony, that the dust that is accumulating on the properties of the residents of the Brayton Point neighborhood is coming from the scrap metal operation at the site. The residents uniformly testified that they did not experience such dust before Brayton Point’s scrap metal operation began. Additionally, the findings in the SAGE report, together with the photographs of dust, and the residents’ experience of dust, indicate that the dust accumulating on their properties is metal dust.

 

Discussion

Perfection of Appeal under c. 40A, § 15.

 

As an initial matter, Brayton Point argues that the Individual Defendants did not perfect their appeals to the ZBA because they failed to file their appeal with the commissioner in addition to the Town Clerk. In relevant part, G.L c. 40A, § 15, requires:

Any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed. The petitioner shall file a notice of appeal specifying the grounds thereof, with the city or town clerk, and a copy of said notice, including the date and time of filing certified by the town clerk, shall be filed forthwith by the petitioner with the officer or board whose order or decision is being appealed, and to the permit granting authority, specifying in the notice grounds for such appeal.

There is no dispute that the Individual Defendants filed their notice of appeal of the commissioner’s actions with the Town Clerk within the thirty day deadline, and as I have found from the commissioner’s testimony, the commissioner was given copies of the notice by the Town Clerk. Boucher testimony (Tr. I-224). A close reading of § 15 shows that while the petitioner must file the notice of the appeal with the Town Clerk within a specified time period, the statute does not provide a hard deadline by which to file with the “officer or board.” Rather, the “officer or board” must simply be served copies “forthwith.”

 

The court is guided by the so-called Schulte doctrine, after Schulte v. Director of Div. of Employment Sec., 369 Mass. 74 (1975). The Schulte doctrine establishes that while the timeliness of an appeal “should be held a condition sine qua non,” other procedural steps in the appeal “should be treated on a less rigid basis.” Pierce v. Board of Appeals of Carver, 369 Mass. 804, 811 (1976); Schulte, 369 Mass. at 79. When it comes to appellate procedure, Massachusetts courts distinguish between “serious missteps and relatively innocuous ones,” and judges are to consider whether the digression conflicts with the purposes of the statute and the extent to which the other party has been prejudiced thereby. Schulte, 369 Mass. at 79-80. The purpose of notice provisions is “to give interested third persons at least constructive notice of the appeal,” and “[s]trict compliance with all the details” of notice provisions is not required. Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 443 (1975).

 

Here, the commissioner himself stated that he had actual notice of the appeal and received copies directly from the Town Clerk. Boucher Testimony (Tr. I-224). It is not contested that the Town Clerk received the notice of appeals timely from the Individual Defendants, nor has any prejudice been alleged on the part of the Town or Brayton Point by their failure to serve the commissioner directly. Finally, because the statute does not state a deadline by which the commissioner must be served with copies of the notice of appeal, I find that the Individual Defendants’ failure to serve the commissioner directly does not constitute a jurisdictional bar to their appeal.

 

  1. Standing

 

In order to have standing to challenge the commissioner’s decisions, the Individual Defendants must be “person[s] aggrieved” by the decisions. G.L. c. 40A, § 17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 701 (1998).6 This means that they must assert “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest,” Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989), and the right or interest asserted must be one that the bylaw intends to protect. Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 27-28 (2006). See Murchison v. Zoning Bd. of Appeals of Sherborn, 485 Mass. 209, 212-214 (2020). The aggrievement must be more than “minimal” or “slightly appreciable,” and must be “special and different” from the concerns of the general community. Murchison, 485 Mass. at 213-214; Standerwick, 447 Mass. at 33; Kenner, 459 Mass. at 118, 121-122.

 

I find that all of the Individual Defendants have met their burden to establish their standing to contest the commissioner’s actions in this case (the first being his denial of Ms. Souza’s and Ms. Thomas’s enforcement requests in August of 2020, the second being his December 31, 2020, decision to release the cease and desist order). They have put forth credible evidence that their private rights and interests protected by the bylaw have been harmed by the commissioner’s actions. Specifically, the bylaw protects the Individual Defendants from what is, essentially, a nuisance. Section 1.1 of the bylaw declares that its purpose is to “promote the health, welfare, safety, morals and convenience of the inhabitants of the Town of Somerset… to conserve health; to secure safety from fire or panic and other dangers; to provide adequate light and air… to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the Town and to preserve and increase amenities…”. Exh. 80. Section 4.2.6.b of

  • Here, there is no contention that any of the Individual Defendants are abutters to the Brayton Point property, so there is no presumption that they are aggrieved within the meaning of § 17. G.L. c. 40A, § 11; 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692,
  • (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376, 381 (2006). the bylaw specifies that outdoor wholesale storage may operate only “provided that all dust and fumes incident to storage or handling are effectively confined to the premises.” Id. Freedom from the effects of dust is an interest protected by the bylaw.

 

By denying Souza and Thomas’s requests for enforcement in August of 2020 and releasing the cease and desist order on December 31, 2020, the commissioner permitted Brayton Point to continue operating its scrap metal operation. As a result, the Individual Defendants have been personally affected by the scrap metal operation on the site owned by Brayton Point. The scrap metal operation generates dust. This dust has left the site and accumulated on Ms. Thomas’s property, such that she has begun to use an inhaler to address shortness of breath and can no longer use her outdoor patio. Ms. Souza observes this same dust from the scrap metal operation accumulating on her windows and kayak, and has experienced exacerbation of her asthma. Ms. McDonald has dust from the scrap metal operation accumulate on her windows, deck furniture, and vehicles. Testimony of Thomas (Tr. I-53-55), Souza (I-113-115), McDonald (Tr. I-145); View. All three have experienced irritation in their eyes, nose, and throat, and describe a metallic taste when they inhale the dust. Id. (Tr. I-53, I-54-55, I-114, I-144-145)

 

These impacts to their daily lives are more than “slightly appreciable”—they are significant, and unlike the residents of other neighborhoods in the Town, they feel the effects of this dust almost daily. Murchison, 485 Mass. at 213-214; Standerwick, 447 Mass. at 33; Kenner, 459 Mass. at 118, 121-122. These health impacts from the dust generated by the scrap metal operation are harms to interests protected by the bylaw, whose purpose is to protect their health, and which specifically prohibits outdoor wholesale storage unless “dust and fumes incident” to that storage is “effectively confined to the premises.” Exh. 80. The Individual Defendants have standing to appeal the commissioner’s actions that have permitted Brayton Point’s operations to continue.

 

  • Brayton Point’s Appeal of the Cease & Desist Order of November 2020

 

A. Legal Standard

 

Decisions of a local zoning board are reviewed under a two-part framework, involving “a combination of de novo and deferential analyses.” Shirley Wayside Ltd. P’ship v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012). The first step involves determining “whether the board’s decision was based on ‘a legally untenable ground’ or … on a standard, criterion or consideration not permitted by the applicable statutes or by-laws.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970). A judge must give “substantial deference” to the board’s interpretation of its bylaws and uphold a reasonable construction of the board, due to its “special knowledge” of the history and purpose of the bylaws. Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009) (internal citations omitted).

 

If the board has used proper criteria and standards in making its decision, the second step for the court is to determine, “on the basis of the facts it has found for itself,” whether the decision was unreasonable, whimsical, capricious or arbitrary. Britton, 59 Mass. App. Ct. at 74. The board’s decision may only be overturned if “no rational view of the facts the court has found supports the board’s conclusion.” Id. at 75. If “any reason on which the board can fairly be said to have relied has a basis in the trial judge’s findings” and could support a rational board’s decision, the decision must be sustained. S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 360 (1976). This analysis is “highly deferential,” such that only in those “rarely encountered points where no rational view of the facts” found by the court could support the decision should the decision be overturned. Britton, 59 Mass. App. Ct. at 74-75.

 

  1. Souza’s and Ms. Thomas’s Evidence Before the ZBA

 

Brayton Point argues that because the video evidence of violations shown to the ZBA by Ms. Souza and Ms. Thomas does not show violations of the 2019 decision, the ZBA’s decision was arbitrary and capricious. Both videos were admitted into evidence, as Exhibit 51 and Exhibit 58. This argument is without merit. I first note that, while the videos are blurry, it is not clear that the videos do not show a violation. But regardless of what Exhibits 51 and 58 show, that matter is irrelevant on appeal. Under G.L. c. 40A, § 17, I am instructed to “hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” (emphasis supplied). Under such de novo review, the evidence that was actually presented to the ZBA by the Individual Defendants is irrelevant. The question is whether, on the basis of the facts I find for myself, the decision was unreasonable, whimsical, capricious or arbitrary. Britton, 59 Mass. App. Ct. at 74. I will consider the Exhibits 51 and 58 along with the rest of the evidence introduced at trial to make this determination.

 

  1. The 2019 decision

 

The 533 action is an appeal of the ZBA’s decisions reversing the commissioner’s denials of Ms. Souza’s and Ms. Thomas’s enforcement requests. In determining whether the ZBA’s decisions were “arbitrary and capricious,” the first question is what the bylaw requires, and whether Brayton Point was in violation of its permit granted in the 2019 decision. The two appealed-from decisions in the 533 action, decision 26 and decision 29, were both issued on November 24, 2020. Exhs. 5, 6. Both decisions, in finding violations and ordering Brayton Point to cease and desist all operations allowed by the 2019 decision, cite not to the bylaw, but to the provisions of the 2019 decision.

 

Decision 26 and decision 29 refer specifically to Section B.8.a of the 2019 decision, which requires that “[p]ursuant to Section 4.2.6.b of the By-law, no dust or fumes incident to storage or handling of scrap metal or salt shall leave the Site. This applies to all aspects of the scrap metal and salt operations…” Exhs. 5, 6. The ZBA found in both decisions that dust was leaving the site, and therefore Brayton Point’s efforts “to control dust at the Site were not effective.” Id. The ZBA further found in decision 29 that uncovered scrap metal delivery trucks were entering the site, in violation of the 2019 decision. Exh. 6. Because Section B.8.e of the 2019 decision further provided that “[r]epeated failure to contain dust to the Site shall be good cause for suspending operation of the responsible Business,” the ZBA ordered Brayton Point to cease operations until the Commissioner determined that steps were taken to ensure violations would not reoccur. Exhs. 5, 6.

 

Brayton Point argues that decisions 26 and 29 were arbitrary and capricious because the ZBA applied a “no-dust” standard: that is, that the ZBA interpreted the permit to require that no speck of dust shall leave the site. Brayton Point argues that the 2019 decision instead incorporated the original FNCP as the standard for whether dust was contained to the site, and therefore so long as the PM10 monitoring showed that dust levels did not exceed 150 µg/m3 over a 15-minute average, it remained in compliance with the 2019 decision and the bylaw. In support, Brayton Point correctly points out that Section B.8 of the 2019 decision requires Brayton Point’s operations to “be conducted at all times in accordance with the [original FNCP] as submitted and finally amended as Attachment 3 to the December 16, 2019 submission… in support of the Petition.” Exh. 2. Brayton Point argues that the monitoring requirements, setting a limit of 150 µg/m3, conflicts with an interpretation that the 2019 decision prohibits all dust from leaving the property.

The ZBA argues that the wording of Section 4.2.6.b of the bylaw, which provides that “all dust and fumes incident to storage or handling [must be] effectively confined to the premises,” requires Brayton Point to comply with a “no-dust” standard. In other words, “all means all,” according to the ZBA. The ZBA further argues that the 2019 decision, which was never appealed, also holds Brayton Point to a zero dust standard. The ZBA offers a speck of leeway, arguing that the “no-dust” condition does not mean “no-single particle,” but seems to argue that there is still a “de minimis” amount that would be unacceptable.

Bylaws are interpreted “by the ordinary principles of statutory construction.” Shirley Wayside Ltd. P’ship, 461 Mass. at 477. Statutory words and phrases are to be “construed according to the common and approved usage of the language.” G.L. c. 4, § 6. Where the meaning of the language in a bylaw is plain and unambiguous, it should be enforced according to its plain wording “unless a literal construction would yield an absurd or unworkable result.” Shirley Wayside Ltd. P’ship, 461 Mass. at 477 (internal citations omitted). In the context of an appeal, the court defers to a zoning board’s reasonable interpretation of its own bylaws or ordinances. Wendy’s Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381. Of course, the meanings must be consistent with the statutory purpose. See Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977); Commonwealth v. Gove, 366 Mass. 351, 354 (1974). Additionally, the statute must be construed “so that ‘effect is given to all its provisions, so that no part will be inoperative or superfluous.’” Wheatley v. Mass. Insurers Insolvency Fund, 456 Mass. 594, 601 (2010), quoting Bankers Life and Cas. Co. v. Commissioner of Ins., 427 Mass. 136, 140 (1998).

Neither the ZBA nor Brayton Point is correct about the requirements of the 2019 decision and the bylaw. First, it is unreasonable for the ZBA to interpret the 2019 decision as holding Brayton Point to a stricter standard than the bylaw. The 2019 decision, in stating that “no dust or fumes shall leave the site,” cites bylaw § 4.2.6.b for its authority. Therefore, the 2019 decision and the bylaw must set the same standard. Second, it is unreasonable for the ZBA to interpret both the 2019 decision and the bylaw as requiring a “zero-dust” standard. As Mr. Lannan testified, it is virtually impossible for any operation to produce zero dust. Lannan Testimony (Tr. V-42, V-85, V-91), Exh. 81. Such an interpretation “would yield an absurd or unworkable result.” Shirley Wayside Ltd. P’ship, 461 Mass. at 477.

Brayton Point, however, is also incorrect that by keeping operations below the EPA limit of 150 µg/m3 of PM10 dust over a 15-minute average, the limit monitored for under the original FNCP, it is effectively confining dust to the premises. First, as Mr. Lannan testified, PM10 is just one size of dust particulate. Lannan Testimony (Tr. I-39-40). Monitoring for just one size does not ensure that particulate sizes of dust that are larger or smaller are being contained to the site. Indeed, Brayton Point knew this, because the EPA inspectors informed them that scrap metal dust likely wouldn’t be picked up by PM10 monitors, because scrap metal dust is larger than PM10. Exh. 29. The original FNCP, as incorporated into the 2019 decision, did not set a standard for when dust emissions would be considered as having left the site. It simply provided for monitoring and set a level at which the dust results must be reported. The 2019 decision incorporates the original FNCP in Section 8, and then states that “in addition” “no dust or fumes… shall leave the site.” Exh. 2, Section 8.a. Reading the 2019 decision in its entirety, the purpose of incorporating the original FNCP into the 2019 decision was not to set the standard for whether dust was leaving the site. That is a separate requirement of the decision. Rather, the original FNCP was intended to give guidance to Brayton Point and constituted an agreement as to how Brayton Point would attempt to meet the bylaw standard. The original FNCP did not absolve Brayton Point from taking additional measures to ensure that dust would be effectively confined to the premises.

 

Both the bylaw and the 2019 decision required Brayton Point to effectively confine dust to the premises. This does not mean “zero dust,” nor does it mean “dust up to 150 µg/m3 of PM10.” If the bylaw had intended to prohibit outdoor storage facilities from emitting any dust, then the word “confine” would not require the modifier “effectively.” Wheatley, 456 Mass. at 601 Merriam Webster’s Dictionary defines “effectively” as “in an effective manner” or “in effect: virtually.” Effectively, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/effectively (last visited, Feb. 9, 2022). The word “effective” is further defined as “producing a decided, decisive, or desired effect.” Effective, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/effective (last visited, Feb. 9, 2022).

 

The question is, at what level of dust leaving the site does it mean that the dust is no longer effectively confined to the site? As Mr. Lannan testified, dust is everywhere. Lannan Testimony (Tr. V-91). In other words, some dust will always escape the site. But the Town has a strong interest in preventing its residents from experiencing the negative effects of dust produced by outdoor storage facilities, and has made that interest enforceable in its bylaw. If the residents do not experience the effects of the dust that leaves the site, then it can be said that the dust is being “effectively confined to the premises.” But once dust is migrating off the site to the extent that residents can see it in the streetlights, taste it in their mouths, feel it in their noses and throats, and observe it settling on their cars, lawns, homes, and outdoor furniture, it cannot be said that the dust is being “effectively” confined to the site. The bylaw and the 2019 decision require Brayton Point to manage the dust from their operations—including trucks driving over the unpaved concrete aggregate—so that the neighboring residents do not suffer its effects.

 

While the bylaw’s requirement that Brayton Point effectively confine dust to the site may be strict—stricter than, at least, EPA’s PM10 requirements—the Town has the authority to set stricter limits than what may be considered the industry standard. The site is uniquely situated on a peninsula just across the water from a residential neighborhood. View. It is not unreasonable for the Town to require that the scrap metal operation effectively confine scrap metal dust to the site.

 

Based upon all of the credible evidence before me indicating that a significant amount of dust from the scrap metal operation was blowing from the site to the Brayton Point neighborhood, I find that there was sufficient evidence of dust escaping the property for the ZBA to find that Brayton Point was not effectively confining dust to the site as required and to issue the cease and desist order. Under the de novo review standard, there are ample reasons “on which the board can fairly be said to have relied” in issuing the cease and desist order in November of 2020. S. Volpe & Co, 4 Mass. App. Ct. at 360. I credit the testimony of the residents, who uniformly testified that since Brayton Point began operating, they have experienced dust reaching their properties. I credit the SAGE report to the extent that it revealed that the dust contained heavy metals which one would expect to find in a scrap metal heap such as the one Brayton Point maintains on the site. Brayton Point made good faith efforts under the original FNCP to prevent dust from leaving the site. But those efforts failed. The GEI monitoring does not prove otherwise, because it was not only monitoring for the wrong size of dust, but because the Fuss & O’Neill concurrent monitoring indicated that those monitors could be inaccurate. Therefore, decision 26 and decision 29, resulting in the cease and desist order issued on November 24, 2020, are affirmed.

 

  1. The Uncovered Trucks

 

There remains one matter to be addressed in Brayton Point’s appeal of decision 29: whether the ZBA acted arbitrarily and capriciously in finding that it was in violation of the 2019 decision’s requirement that trucks may only enter the Brayton Point property if the beds are “tarped” or covered. Brayton Point does not contest that violations of the tarping requirement occurred, but instead argues that Ms. Thomas did not have standing to raise this issue before the ZBA. Brayton Point’s argument is that because she is not “special and different” from other members of the community in her harms from the violation, she cannot have standing.

 

The term “person aggrieved” is not to be construed narrowly. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996). The burden of plaintiffs in establishing standing is not to prove harms caused by each alleged violation, but to prove harms caused by the overall use allowed by the permit. See Aiello v. Planning Bd. of Braintree, 91 Mass. App. Ct. 354, 363-364 (2017); Chambers v. Building Inspector of Peabody, 40 Mass. App. Ct. 762, 768 (1996). As I found previously, Ms. Thomas has far more than de minimis impacts resulting from Brayton Point’s scrap metal operation. Unlike most of the residents of the Town of Somerset, she lives directly across the water from the site and has a view of the operation from her living room window. View. Ms. Thomas’s impacts resulting from the scrap metal operation are definite, and not speculative. Brayton Point’s failure to require trucks to be tarped when entering and exiting the Brayton Point property only adds insult to injury: scrap metal dust blows directly from uncovered trucks carrying loads of scrap metal onto the property. In high winds, it is not difficult to see how that dust blows over the water to Ms. Thomas’s property. Ms. Thomas therefore had standing to raise the appeal regarding uncovered trucks entering the Brayton Point property.

Because Brayton Point made no argument post-trial as to whether the ZBA’s decision overturning the commissioner was arbitrary and capricious on this topic, decision 29 will be affirmed.

 

  1. Appeal of Commissioner’s Decision Lifting the Cease & Desist Order

 

The next question is whether the ZBA properly overturned the decision of the commissioner in lifting the cease and desist order on December 31, 2020. Pursuant to decisions 26 and 29, the ZBA ordered Brayton Point to submit a plan to the commissioner “detailing what measures and monitoring will be implemented to ensure that such violations will not reoccur.” The commissioner was ordered not to allow operations to resume “until he is satisfied that the measures will be sufficient to ensure that such violations will not reoccur.” Exhs. 5, 6

Upon Fuss & O’Neill’s review and approval of the modified FNCP, the commissioner lifted the cease and desist order in a one page letter on December 31, 2020. Exh. 8. The Individual Defendants promptly appealed that action within the thirty day deadline on January 14, 2021, to the ZBA, pursuant to G.L. c. 40A, § 15. After a public hearing was held on February 18, 2021, the ZBA granted the appeal, filing decisions 7-9 with the Town Clerk on March 8, 2021.

The initial question is whether the Individual Defendants had standing to contest that decision by the commissioner. General Laws c. 40A, § 7, provides, in relevant part, that “[a]n appeal [to the ZBA] . . . may be taken . . . by any person aggrieved by an order or decision of the inspector of buildings.” The appeal must be taken within thirty days. G.L. c. 40A, § 15. The Individual Defendants’ appeal was of a decision of the commissioner, the inspector of buildings, to lift the cease and desist order, and was brought within thirty days of the commissioner’s decision. Brayton Point contends that the Individual Defendants were not aggrieved, and therefore did not have standing to appeal the decision of the commissioner in lifting the cease and desist order. I disagree. By releasing the cease and desist order, the commissioner permitted Brayton Point to continue operating under its modified FNCP. I credited the testimony of the Individual Defendants as to the impacts they experience as a result of Brayton Point’s scrap metal operation, which did not change after the implementation of the modified FNCP. Indeed, all three testified as to their experiences up to the date of trial. I also observed the dust accumulating on their properties at the view. As I noted above, these impacts are undoubtedly ones that are protected by the bylaw, and are more than “minimal” or “slightly appreciable.” Finally, as residents of the Brayton Point neighborhood, the Individual Defendants’ impacts are also special and different from those of the general community of the Town of Somerset, due to their proximity to the site. Therefore, the Individual Residents are “persons aggrieved” by the commissioner’s lifting of the cease and desist order, and have standing.

The next question is whether, as Brayton Point contends, the ZBA acted arbitrarily and capriciously in granting the appeals of the Individual Defendants as to the release of the cease and desist order. In other words, was the ZBA justified in overruling the commissioner and re-implementing the cease and desist order in decisions 7-9?

Brayton Point argues that decisions 7-9 were arbitrary and capricious because they were based upon a “zero-dust” standard. Once again, under G.L. c. 40A, § 17, I must first decide whether the decision was based on a “legally untenable ground” or on “a standard, criterion or consideration not permitted” by the bylaw. Britton, 59 Mass. App. Ct. at 73. Importing the same analysis as above, I find that, to the extent the decisions 7-9 were based upon a “zero-dust” standard, the decisions were based upon a “legally untenable ground.” The cease and desist order of November 24, 2020, required Brayton Point to come up with a new plan to ensure that violations would not reoccur. Because I previously determined that the 2019 decision and the bylaw only require Brayton Point to “effectively confine” dust to the premises, the November 24, 2020, order does not require Brayton Point to come up with a plan that ensures that zero dust is emitted in the future. Rather, Brayton Point was required to produce a plan that ensured it would comply with the 2019 decision and effectively confine dust to the site.

Next, I must decide on the basis of that standard—effectively confining dust to the property—applied to the facts I have found, whether the ZBA’s decisions overturning the commissioner were unreasonable, whimsical, capricious, or arbitrary. Id. at 74. If “any reason on which the board can fairly be said to have relied” has a basis in my findings, the decision must be sustained. S. Volpe & Co., 4 Mass. App. Ct. at 360.

As Mr. Vandermeer and Mr. McLaughlin testified, many of the measures that were added to the modified FNCP had already been implemented by the time it was approved by Fuss & O’Neill. Even according to the GEI monitoring reports (which I find hold minimal weight), little changed in the amount of PM10 being emitted before and after the implementation of the modified FNCP. Additionally, none of the residents testified that there was any improvement in terms of the dust being deposited into the Brayton Point neighborhood after the modified FNCP was implemented.

While I credit Brayton Point’s efforts to implement new strategies to prevent dust from reaching the neighborhood—such as increased use of misting cannons, dedicated roadways for delivery trucks, improved weather monitoring, and the use of skip pans instead of grapples for loading ships—I also note that Brayton Point did not implement any additional air quality monitoring to ensure that violations would not reoccur. Brayton Point simply added a warning limit of 100 µg/m3 for PM10, which would indicate to the workers that they were approaching the limit of 150 µg/m3, but would not actually lower the limit under which they could operate.

As the residents testified, and as I saw for myself at the view, dust continued to reach the Brayton Point neighborhood even under the modified FNCP. The residents uniformly testified that the dust problem was just as bad in the year 2021 as it was in 2020. They continued to be affected daily by dust landing on their properties and flowing through their air. The modified FNCP therefore was ineffective at confining the dust to the site. Because Brayton Point’s modified FNCP did not bring them into compliance with the 2019 decision, it was reasonable for the ZBA to reverse the commissioner and reinstitute the cease and desist order, as Brayton Point had not complied with the earlier order of November 2020. Decisions 7-9 of the ZBA will be affirmed.

 

  1. Remedy

 

As discussed above, decisions 26 and 29, ordering Brayton Point to cease and desist operations, and decisions 7-9, reversing the commissioner’s decision and reinstating his cease and desist order, will be affirmed. The ZBA has filed both its 533 counterclaim and 155 counterclaim, in which it seeks a permanent injunction requiring Brayton Point to fully comply with decisions 26 and 29, decisions 7-9, the cease and desist order, and the bylaw. Based on the findings of fact and conclusions of law above, judgment shall enter on both the 533 counterclaim and the 155 counterclaim ordering Brayton Point to cease and desist from the scrap metal operation within fourteen days, and to fully comply with decisions 26 and 29, decisions 7-9, the cease and desist order, and the bylaw. Brayton Point will be specifically enjoined from allowing the operation of the scrap metal operation until it demonstrates to the ZBA that it can operate consistent with the 2019 decision and the bylaw.

 

Conclusion

 

For the foregoing reasons, the ZBA’s decisions 26, 29, and decisions 7-9 are AFFIRMED. Brayton Point is ORDERED to fully comply with decision 26, decision 29, decision 7, decision 8, decision 9, the cease and desist order, and the bylaw. Until further order of the court, Brayton Point, LLC, its agents, servants, guests, and invitees, and all persons operating under its authority, are hereby further ORDERED to cease the operation of its scrap metal operation within fourteen (14) days from the date of judgment. Brayton Point, LLC and their agents, servants, guests, and invitees are only to resume operations after approval by the ZBA.

 

Judgment Accordingly.

/s/ Robert B. Foster

Robert B. Foster, Justice

 

Dated: March 7, 2022

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

COMMONWEALTH OF MASSACHUSETTS LAND COURT

DEPARTMENT OF THE TRIAL COURT

 

BRISTOL, ss                                                                          MISCELLANEOUS CASE

NO. 20 MISC 000533 (RBF)

)

BRAYTON POINT, LLC,                                         )

)

Plaintiff,                                                          )

)

  1. )

) STEVENCADORETTE, JAMESPIMENTAL,                                                               )

and JOSEPH FINGLISS, as they are Members of     ) the SOMERSETZONING BOARD OF APPEALS,)

and KATHLEEN SOUZA, individually, and            ) NANCY THOMAS,individually,   )

)

Defendants.                                                     )

                                                                                    )           Consolidated with

)           NO. 21 MISC 000155 (RBF)

BRAYTON POINT, LLC,                                         )

)

Plaintiff,                                                          )

)

  1. )

) STEVENCADORETTE, JAMESPIMENTAL,                                                               )

and JOSEPH FINGLISS, as they are Members of     ) the SOMERSETZONING BOARD OF APPEALS,)

and KATHLEEN SOUZA, individually, NANCY    ) THOMAS,individually, and NICOLE       )

McDONALD, individually,                                       )

)

Defendants.                                                     )

                                                                                    )

 

 

J U D G M E N T

 

Brayton Point, LLC (Brayton Point) filed the complaint in case no. 20 MISC 000533 (the 533 action) on December 1, 2020, naming as defendants the members of the Somerset Zoning

 

Board of Appeals (ZBA), Kathleen Souza (Souza), and Nancy Thomas (Thomas). The 533

action is an appeal under G.L. c. 40A, § 17, of the ZBA’s Decision No. 26 of 2020 (Decision 26) and Decision No. 29 of 2020 (Decision 29), both filed with the Somerset Town Clerk on November 24, 2020, which found that Brayton Point had failed to comply with Decision No. 29 of 2019, filed with the Town Clerk on January 7, 2020 (2019 decision), under the Town of Somerset Zoning Bylaw (bylaw). The ZBA filed its Verified Counterclaim (533 counterclaim),seeking zoning enforcement of Decision 26 and Decision 29 pursuant to G.L. c. 40A, §§ 7, 14, and the Somerset Board of Appeals Motion for Preliminary Injunction (PI motion) on December 8, 2020. Souza and Thomas filed their respective answers to the complaint and motions to join the counterclaim and the PI motion on January 11, 2021. Brayton Point filed its answer to the counterclaim and objection to Souza’s and Thomas’s motions to join the counterclaim on January 13, 2021.

 

Brayton Point filed the complaint in case no. 21 MISC 000155 (the 155 action) on March 22, 2021, naming as defendants the members of the ZBA, Souza, Thomas, and Nicole McDonald (McDonald). The 155 action is an appeal under § 17 of the ZBA’s Decision No. 7 of 2021 (Decision 7), Decision No. 8 of 2021 (Decision 8), and Decision No. 9 of 2021 (Decision 9), all filed with the Town Clerk on March 8, 2021. The ZBA filed its Counterclaim (155 counterclaim) seeking enforcement of Decisions 7, 8, and 9 pursuant to G.L. c. 40A, §§ 7 and 14 on May 3, 2021. A case management conference in the 155 action and a status conference in the 533 action was held on April 7, 2021, and the two actions were consolidated. On April 27, 2021, the Individual Defendants each filed their answers to Brayton Point’s complaint in the 155 action, and the ZBA filed its counterclaim in the 155 action on May 3, 2021.

 

On July 2, 2021, Brayton Point filed Plaintiff’s Motion for Partial Summary Judgment (Brayton Point summary judgment motion). On August 27, 2021, the Individual Defendants filed Defendants, Nicole McDonald, Kathleen Souza, and Nancy Thomas’ Motion for Summary Judgment (Individual Defendants’ summary judgment motion). OnSeptember 14, 2021, the ZBA filed Joinder of Defendant, Somerset Zoning Board of Appeals, in Co-Defendants’ Motion for Summary Judgment. Hearing on the Brayton Point summary judgment motion and the Individual Defendants’ summary judgment motion was held on September 15, 2021. At the hearing, the Brayton Point summary judgment motion was denied, and the Individual Defendants’ summary judgment motion was taken under advisement.The Individual Defendants’ summary judgment motion was denied on September 27, 2021 in a Memorandum andOrder issued on that date (summary judgment order).

 

The court took a view on August 18, 2021. Trial was held on November 1-3, November 15, and November 17, 2021. The November 3 trial session was held by Zoom; the other days of trial were in person. At the close of evidence on November 17, 2021, the ZBA moved for directed judgment and for immediate injunctive relief. The motion was denied. At a status conference on November 18, 2021, the ZBA renewed its motion for preliminary injunction, and the court ordered Brayton Point to limit the hours of loading its next ship, and not to conduct any operations on Thanksgiving. At a status conference on December 3, 2021, the court ordered that Brayton Point was permitted to allowno more than 40 trucks per day to enter the property during weekdays, and further ordered that the trucks entering the property must be covered. The parties filed their post-trial briefs on December 15, 2021. The court held a Post TrialHearing and heard

 

closing arguments on December 20, 2021 by video conference and took the case under advisement.

 

In accordance with the court’s Decision issued today, it is

 

ORDERED, ADJUDGED and DECLARED in the 533 action that both Decision 26 and Decision 29 arehereby AFFIRMED. It is further

 

ORDERED and ADJUDGED that the complaint in the 533 action is DISMISSED without prejudice. It is further

 

ORDERED, ADJUDGED and DECLARED in the 155 action that Decision 7, Decision 8, and Decision 9 are each hereby AFFIRMED. It is further

 

ORDERED and ADJUDGED that the complaint in the 155 action is DISMISSED with prejudice. It is further

 

ORDERED, ADJUDGED and DECLARED regarding the 533 counterclaim and the 155 counterclaim that the ZBA is entitled to enforcement of Decision 26, Decision 29, Decision 7, Decision 8, and Decision 9 pursuant to G.L. c. 40A, §§ 7 and 14, and therefore the ZBA’s request for a permanent injunction is GRANTED. It is further

 

ORDERED and ADJUDGED that within fourteen (14) days of the date of this judgment, Brayton Point andits agents, servants, guests, and invitees, and all persons operating under its authority shall cease and desist from all scrap metal operations as ordered in Decision 26, Decision 29, Decision 7, Decision 8, and Decision 9, and shall not resume such operations until Brayton Point has demonstrated to the ZBA that it has complied with Decision 26 andDecision 29 consistent with the 2019 decision and the bylaw.

 

By the Court. (Foster, J). /s/ Robert B. Foster

 

Attest:                                                                                              /s/ Deborah J. Patterson

Meet the Author
Deborah J. Patterson Recorder

Dated: March 7, 2022.