SYLVESTER A. RAY, INC. vs. BOARD OF APPEALS OF THE TOWN OF MARSHFIELD

Sylvester A. Ray, Inc. ("Ray"), the plaintiff, appeals pursuant to the provisions of G.L. c. 40A, §17, from the denial by the Zoning Board of Appeals of the Town of Marshfield (the "ZBA"), the defendant, of its application for a special permit and site plan approval for a landfill of demolition materials on an eleven (11) acre parcel of land situated on the southerly side of Clay Pit Road in the Town of Marshfield. The site of the proposed landfill is an old gravel pit formerly operated by Marshfield Sand and Gravel, Inc. the plaintiff's predecessor in title in which Mr. Sylvester A. Ray also was a principal. The plaintiff currently operates a demolition landfill on the opposite side of Clay Pit Road from the locus which is scheduled to be closed in the near future, and accordingly, it seeks a new site for the disposition of demolition materials.

The plaintiff argues that the proposed landfill is a less offensive use than the continuance of the worked out gravel pit, that the neighborhood is such that the proposed use would fit in without detriment to it, that public policy favors the procurement of sites for disposal of waste without regard to municipal boundaries, that the design of the proposed landfill incorporates the latest techniques for prevention of air or water pollution, and that the ZBA violated the applicable standards in refusing to issue a special permit after the Marshfield Board of Health had made a Site Assignment pursuant to the provisions of G.L. c. 111, §150A. Conversely, the decision of the ZBA found that the proposed use did not fall within any category authorized by special permit pursuant to the provisions of the Marshfield Zoning By-Law. Secondly, as will hereafter appear, the Board set forth at length its reasons for refusing to grant the special permit or to approve the site plan, some of which are diametrically opposed to the findings made by its predecessor Board in granting a special permit for the existing landfill.

The law is clear that no one has an absolute right to a special permit and that the ZBA has power to deny it so long as the standards enunciated by the appellate courts are met. S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477 , 481 (1980) cert. den. 449 U.S. 1011 (1980). The action of the board must be upheld if it rests on legally tenable grounds and is not unreasonable, whimsical or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (MacGibbon II). It is not the wisdom of the ZBA's decision but its validity which is properly the subject of judicial review. Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983) citing Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976). For the court to order an administrative board to issue a special permit takes away the board's discretion. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979), rev. den. 379 Mass. 927 (1979) and it is the board's evaluation of the seriousness of the problem which controls unless the evidence requires a finding that the effect is minimal. Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973); Cape Ann Land Development Corp. v. City Council of Gloucester, 374 Mass. 825 , 826 (1978). It is only where it is clear that the board's decision is not in accordance with the law or is arbitrary or capricious that the Court may intervene. MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 520 (1976) (MacGibbon III) citing Roberts-Haverhill Assocs. v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 717 (1974). Even then the usual approach is to remand the matter to the board for review rather than to order, as was done in Subaru, the issuance of a special permit. The rule is different, however, in situations involving site plan approval as is discussed at length in Prudential Insurance Company of America v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 282-283 (1986).

With these principles in mind, we turn to a consideration of the present dispute between the plaintiff and the ZBA.

An eleven (11) day trial was held at the Land Court on June 9 and 15, August 10 and 11, November 16, 17, 18, 19, 20 and 25, 1987 and February 17, 1988. On each day of trial a stenographer was sworn to record and transcribe the testimony. Twenty-five exhibits, some of which contain multiple parts, were introduced into evidence, four documents were marked merely for identification purposes and nineteen chalks were provided and marked for the assistance of the Court; all are incorporated herein for the purpose of any appeal. The plaintiff called nine witnesses: Michael F. Valenti, Manager and Vice President of Sylvester A. Ray, Inc.; M. Anthony Lally, principal in the firm of M. Anthony Lally Associates, consulting environmental engineers; Robert C. Blumenthal, principal in the firm of Robert C. Blumenthal Associates, transportation engineers and planners; Gregg Hunt, an environmental engineer with the Massachusetts Department of Environmental Quality Engineering ("DEQE"), Division of Solid Waste for the Southeast Regional Office in Lakeville; Robert A. Weimar, President of Normandeau Engineers, Inc., environmental engineers; Arthur F. Watson, Regional Vice President of Market Development for Browning-Ferris Industries ("BF I"); Kenneth G. Galli, part-time consulting engineer in hydrogeology with M. Anthony Lally Associates; Leonard Landry, associate engineer with GHR Engineering, formerly Superintendent of Public Works for Marshfield from 1983 to 1987; and Carol J. Thomas, a land use planner and President of Thomas Planning Services (both by videotaped deposition with transcription and by in-person testimony at trial). The defendants called thirteen witnesses: James F. Mullen, the Town Engineer for Marshfield; Michael Almada, Marshfield Town Planner; Peter Falabella, Marshfield Director of Public Health; Carl Hillstrom, Marshfield Water and Sewer Supervisor; Pauline Hunt, Assistant Building Inspector for Marshfield; Donald Gibson, member of the Marshfield Board of Health from 1983 to 1987; Craig Murray, a professional photographer ; James Litrides, an industrial hygienist with Briggs Associates, an engineering firm; Bryan McLaughlin, a resident of 2 Tracy's Path in Marshfield ; Warren Harrington, the Marshfield Conservation Administrator ; Steven L. Kurz, a consulting geologist with Kurz Associates ; Richard R. Snyder, a consulting environmental engineer ; and Polly Moog, a hydrogeologist and senior planner with DEQE.

On all the evidence I find and rule as follows:

1. Clay Pit Road in Marshfield, on which the plaintiff's present landfill is situated and on which the proposed facility also will be situated, is a heavily industrial neighborhood situated within an R-1 Residential Rural District. Other uses within that section of Clay Pit Road lying between Ferry Street and Grove Street are the present landfill operated by the plaintiff, the town landfill and septage lagoons, Southern Redi-Mix concrete and a concrete casting operation, a kennel, the Town of Marshfield Public Works facility, two equipment repair garages and an auto body parts and repair shop. The Marshfield Sand and Gravel and Redi-Mix operations have been in existence since the 1940's, the Town landfill began in the late 1950's, while the kennel and auto related uses began in 1979 or 1980.

2. The usual route by which trucks using the present landfill reach Clay Pit Road is from Route 3 (a large Interstate Highway running from Boston, or more accurately from the intersection of Route 128 and the Southeast Expressway, southerly to the Cape Cod Canal) to Route 139 (called Plain Street in Marshfield) to Furnace Street past the public school complex consisting of the Marshfield high school, junior high school and Grade 6, continuing through a residential neighborhood to Ferry Street for a short distance and then on to Clay Pit Road. The route also crosses Massachusetts State Highway Route 3A. It is possible to approach Clay Pit Road from Route 3A or by other roads, but the route which I have delineated is that most commonly used by the larger truck traffic. Route 139 is a very heavily travelled state highway bordered primarily by commercial properties or multi-family housing in the stretch from Route 3 in Pembroke to Furnace Street. Near the intersection of Plain and Furnace Streets there are non-residential uses such as a bank and a medical office building, but continuing along Furnace Street and Ferry Street, the area largely is devoted to single family residential uses. There also are single family residences to the northeast of Clay Pit Road on Grove Street beyond the Town landfill and the existing Ray landfill.

3. There is no dispute that Route 139 and Furnace Street are heavily travelled roads. Route 3, of course, which is not primarily involved so far as a decision in this case is concerned, carries approximately 47,700 vehicles per day in this area, while Plain Street carries 19,000 vehicles, Furnace Street 6,000 to 10,000 vehicles per day, Ferry Street 3,600 vehicles per day, and Clay Pit Road 2,300 vehicles per day. All of these roadways have extensive truck traffic of which the landfill truck traffic is but a minor percentage so far as numbers are concerned.

4. On May 31, 1977, the ZBA issued a special permit to Marshfield Sand and Gravel, Case No. 77-7 (Exhibit No. 3) "to operate a sanitary landfill reclammation (sic) project to restore an existing gravel pit . . ." The ZBA based its decision upon the following six findings:

(a) That said requested use is listed in the Table of Use Regulations by Special Permit;

(b) That said requested use is desirable to the public convenience and welfare because its purpose is to reclaim an existing gravel pit, restoring it to the approximate contour of the original land surface, thus the elimination of potential hazards and dangers to children, including erosion, landslide and standing pools of water;

(c) That with reference to traffic and pedestrian safety, the Board recognizes that there will be an increase in traffic, however, it feels it will still be substantially less than the peak traffic load in this area of a few years back in connection with the Marshfield Sand and Gravel, Inc. gravel removal operation; Nevertheless, the Board unanimously feels that if State and Town traffic regulations are enforced to the fullest, as well as the restrictions hereinafter imposed, the requested use will not create undue traffic congestions nor unduly impair pedestrian safety;

(d) That said requested use will not overload any public or municipal water, drainage or sewer systems;

(e) That the applicant has met all of the required submittals and furnished the data as set forth in Article XI of the Zoning By-Laws; the conditions for fulfilling same are set forth below;

(f) That the requested use will not impair the integrity or character of the district or adjoining zones, nor be detrimental to the health or welfare, provided the work is done in accordance with the Zoning By-Laws and under the jurisdiction of the various Town agencies and the conditions set by this Board;

This special permit covered the 29.5 acre parcel upon which the existing Ray landfill is located. Title to the property was transferred from Marshfield Sand & Gravel, Inc. to Sylvester A. Ray, Inc. in about 1983. The parties stipulated at trial that the existing Ray landfill was all owed by special permit issued May 31, 1977, which was subsequently renewed on an annual basis until 1985 and was modified by two ZBA decisions dated July 23, 1985 and December 10, 1985 (Exhibit Nos. 14A and 14B). This landfill was in the process of being capped and closed at the time of trial.

5. In approximately 1984, hydrogen sulfide gas, methane, carbon monoxide, carbon dioxide and hydrocarbons were detected in borings of the Ray landfill (Exhibit No. 22). Hydrogen sulfide and methane gas are common by-products of decayed organic matter and hydrogen sulfide smells strongly of sulphur. Studies by the Town and Ray were initiated after nearby residents complained of the odor. The Marshfield Board of Health, after review of testing results, contacted Ray, and M. Anthony Lally Associates was hired by Ray to design a remedy. After review of the test results and upon discussions between the Town, Ray and DEQE, a system of passive venting and active carbon filtration was installed. These venting systems operate, and are monitored, on a daily basis by Ray and bi-weekly by the Marshfield Board of Health. Three leachate monitoring wells were also installed.

6. The Town of Marshfield Zoning By-Laws as in effect at the date of the hearing on plaintiff's application for a special permit to operate the landfill on the site south of Clay Pit Road (Exhibit No. 9) provided, as a principal use authorized by special permit in a Residential District under the heading "Retail and Service", Use No. 24 - "Filling of land or water area (See Section 11.03)". It is to this provision that the plaintiff looks for authority in the defendant ZBA to grant a special permit. It also is arguable, although it has not been raised by the parties and therefore the Court does not rule on it, that Use No. 15 under the category "Community Facilities", i.e., "Public utility including water filter plant, sewage treatmet plant and refuse facility", is a category which also would authorize the ZBA to issue a special permit for a demolition landfill. Section 11.03 which is referred to in Use No. 24 lists particular special permit conditions for filling including the submission of location and site plans. This section also includes two provisions specifically referred to in the decision of the ZBA as follows:

4. Limitation of fill to terrace fills which are not to exceed ten feet at any one time nor be within ten feet of an adjacent lot line or any cut.

8. Where any fill will have a depth of ten feet or more and create a slope of more than one foot in two feet, there shall be a substantial fence enclosing the fill at least six feet in height with suitable gates. Such fence shall be located ten feet or more from the edge of the fill.

7. The Marshfield Zoning By-Law also provides in Section 12.01 for "Environmental Performance Standards" but these standards would appear to apply to the operation of the facility for which a special permit has been granted, not for guidance in the determination as to the propriety of granting such a permit other than perhaps as to the conditions to be imposed if permission is granted for a particular use. The Zoning By-Law as in effect at the time of the trial was also introduced as Exhibit No. 21.

8. The plaintiff is a general contractor primarily engaged in site preparation work. Its principal office and its garages are situated on the northerly side of Clay Pit Road. It repairs and stores construction equipment at its garage including several small backhoes, front endloaders, a bulldozer, and 10-wheel and 18-wheel dump trucks. Adjacent to the garage and main office is the 29.5 acre demolition landfill in present operation. This landfill is open from 7:30 A.M. to 3:30 P.M. and approximately twenty-five 18-wheel dump trucks arrive daily from Monday through Friday with demolition refuse, principally from the plaintiff's primary client, Browning-Ferris Industries ("BFI"). Their typical load consists of brush, stumps, concrete, brick and wall board, plus materials used to cover the demolition materials. At the insistence of the ZBA, the number of truck loads was limited in 1985, and an on-site monitor to inspect and reject loads was required.

9. In 1983 plaintiff obtained from the Marshfield Board of Health a "Site Assignment" for use of the 11.3 acre parcel in question as a demolition landfill (Exhibit No. 7). The DEQE approved the assignment, but it was only a first step in the regulatory process as ultimately DEQE approval must be obtained for the details of construction and operation. This stage has never been reached. The Marshfield Board of Health also now seeks to reconsider its decision and the question as to reconsideration is now before the Plymouth County Superior Court in Sylvester A. Ray, Inc. v. Board of Health of Marshfield, Civil Action No. 88-0179, which I have been specially assigned to hear as a Superior Court Justice. The site is an old gravel pit which ranges from 30 to 80 feet in depth and is bounded to the southwest by high wooded bluffs of sand and gravel which mark the edge of conservation land owned by the Town of Marshfield. It is bounded on the east by the Town of Marshfield sanitary facilities encompassing about 40 acres of which 23 are devoted to the landfill and 11 to the septage lagoons. The bottom of the gravel pit has pockets of wetland vegetation indicative of a high water table. There also are wetlands to the south associated with Howes Brook which in turn flows to the South River. Both the Town's landfill and the locus are located over a geohydrological feature known locally as the "Fairground Aquifer".

10. In April of 1986 the plaintiff applied for a special permit for the restoration of the existing gravel pit excavation by filling with demolition material (Exhibit No. 4). This application was supplemented by the so-called "errata" and subsequent letters (Exhibit Nos. 4A, 4B and 4C). The ZBA held public hearings on June 24 and July 22, 1986 and a site visit was made on July 13. By decision dated October 7, 1986 (Exhibit No. 8) both the application for the special permit and for site plan approval were denied. In reaching its decision the Board made the following 13 findings:

1. The applicant has proposed that it be granted a Special Permit allowing it to operate a commercial refuse facility on the above described property owned by it on the Southerly side of Clay Pit Road in Marshfield.

2. The applicant in conducting its proposed refuse facility will charge a fee to persons who wish to dispose of refuse at its facility.

3. The great majority of the material to be deposited in the said refuse facility would be transported there from outside the Town of Marshfield by means of very large trucks, with an average capacity of 70 cubic yards per vehicle, the average weight of such material being approximately 20 tons.

4. The applicant stated that the Board finds that between 25 and 35 trucks per day would enter and depart the facility each business day.

5. The proposed facility would be located in a residential zone which is heavily built up with single family detached homes. The proposed facility would be located a relatively short distance from a major public school complex.

6. The roadways leading into the facility are of a narrow two-lane type characteristic of semi-rural residential areas. The roadway system leading to the proposed facility was not designed for extensive, heavily-loaded truck traffic of the type which would be generated by the proposed facility. The passage of heavy trucking through residential neighborhoods will cause excessive noise and vibration and will endanger the safety of school children who regularly wait for, embark upon, and disembark from, pulbic school buses at numerous locations along the roadways which lead to the proposed facility.

7. The applicant presently operates a similar refuse facility on the Northerly side of Clay Pit Road, opposite the proposed facility. Large trucks waiting to use the present facility regularly wait in lines along the roadways leading to the facility during the hours prior to the opening time of the facility each morning. Such lines of trucks are frequently observed opposite the above described public school complex.

Based on the similarities between the present facility and the proposed facility the Board concludes that the proposed facility would cause similar early morning waiting lines of trucks on the roadways leading to the facility.

8. Although the applicant claims that it will only accept demolition materials at the proposed refuse facility it has presented no plan for comprehensive, effective, and reliable monitoring by its employees or agents of materials brought to the facility, in order to assure that hazardous materials, or refuse other than demolition materials, will not be deposited at the facility.

The Town of Marshfield has no resources to monitor the facility on a continuous basis. The Board has therefore concluded that there is no assurance that dangerous or other undesireable (sic) materials will not be deposited at the site.

9. The Town of Marshfield has recently experienced serious problems with pollution of the artesian wells which provide its entire supply of drinking water. Chemical pollution has been discovered in a number of wells which provide 25% of the Town's water supply. The location of the proposed facility is either directly over, or in near proximity, to a town acquifer (sic). The applicant has not provided the Board with sufficient evidence to allow the Board to conclude that the operation of the proposed facility will not further endanger the already imperiled water supply of the Town. A significant factor upon which the board relied in reaching this conclusion was the failure of the applicant to demonstrate that it had an effective monitoring system to prevent the deposit of hazardous materials at the facility.

10. The facility presently operated by the applicant, as described above, has in the past produced measureable (sic) quantities of poisonous gas. The applicant has not demonstrated that the operation of its proposed facility will not similarly create poisonous gas, either while being operated or after it is closed, and therefore the Board cannot conclude that the proposed facility will not subject the surrounding air or water to undue risk of pollution.

11. The Board has further concluded that the applicant has not demonstrated that its proposed leachate system and proposed binder of impervious material is sufficient to prevent possible air or water pollution, especially in view of the inadequate controls over what is deposited into the facility.

12. The applicant has not complied with the requi rements of Article XI, §11.03 with respect to fencing and terracing.

13. The Board finds that the character of the zoning district in which the proposed facility is to be located is residential, that the operation of a facility such as that proposed by the applicant is not in keeping with such character, and will therefore impair the integrity of the district.

Based on such findings the Board concluded as follows:

1. By a vote of 4 to 1, Dunlea opposed, it was concluded that the use proposed by the applicant is not a use allowed either by right or Special Permit under the Marshfield Zoning Bylaws.

2. It was further unanimously concluded that:

a. the requested use was not essential or desireable (sic) to the public convenience or welfare;

b. the requested use will create undue traffic congestion and unduly impair pedestrian safety;

c. the requested use will endanger the public water system such that developed uses in the immediate area and in other areas of the Town will be unduly subjected to hazards affecting health, safety, and the general welfare;

d. the use as proposed does not meet the regulations set forth in Article XI of the Bylaws.

e. the use will impair the integrity and character of the zoning district and will be detrimental to the public health and welfare.

As to the site plan approval the ZBA arrived at the following three conclusions:

1. The Site Plan and Plan of Operation proposed does not assure the protection of adjoining premises against detrimental or offensive uses on the site.

2. The Site Plan and Plan of Operation does not assure the convenience and safety of vehicular and pedestrian movement on adjacent streets and property.

3. The Site Plan and Plan of Operation does not assure an adequate method of disposal for refuse and other wastes (i.e., leachate, gasses, and possible hazardous material), resulting from the proposed use.

11. There is a public water supply well known as the "South River Street Well" which lies approximately 2,000 feet south of the area of locus and the Town landfill. To the west of this well is an approved public water supply well site which lies approximately 2,300 feet southwest of locus. DEQE recently adopted a policy (Exhibit No. 26) which recommends that municipalities locating public water supplies in groundwater identify the so-called "zone of influence'' of wells on the groundwater source which the department has denominated "Zone 2". Until the "zone of influence" can be so identified, the department has recommended that an "Interim Zone 2" of one-half mile (2,640 feet) be followed. Experts for both parties agreed that the general groundwater flow of approximately 70% of the 1ocus is to the southeast with a groundwater divide on the site causing the remainder of the groundwater to flow generally to the northwest. The generally southeasterly flow ultimately would bring the groundwater from the locus and the Town's facility to the South River which is a protected water course.

12. At trial the parties stipulated as to the following seven facts (Exhibit No. 25) pertaining to the South River:

1. The South River is tributary to, and empties into the North River.

2. The North River is a scenic river under the 1978 Scenic Rivers Act.

3. The Massachusetts Division of Water Pollution Control (DWPC) has classified the South River as Class SA for its entire length.

4. Class SA water is considered suitable for primary contact recreation (bathing, water skiing, and recreational shell fishing).

5. The DWPC has designated that the South River is to be provided the antidegradation status "Protected Low Flow Waters". These water are deemed unable to accept pollutant discharges. New or increased discharges of pollutants whether originating at a point or major nonpoint source are prohibited unless a variance is granted by DWPC under 314 CMR 4.04 (6).

6. Sediment core samples to a depth of 6 inches taken from the South River intertidal zone adjacent to Broad Creek on June 18, 1986 showed mercury levels above state standards used in the classification of dredge or fill material (14 CMR 9.00). This concentration approaches levels observed in Boston Harbor.

7. The intertidal zone adjacent to Broad Creek is downriver from the proposed site and from the place where Howes Brook enters the South River.

13. The Town of Marshfield has been compelled to close several of its wells because of pollution problems, the source of which has not as yet been identified. GHR Analytical, Inc. has made an analysis of the Town water supply wells (Exhibit No. 19) which detected traces of benzene and of tetrachloroethylene in the South River Street well. GHR also is conducting hydrological studies for the Town to identify the contamination source(s) and outline a course of action. Three public wells along Furnace Brook, Nos. 1, 2 and 4, also have shown traces of tetrachloroethylene, and the Town has closed both the South River Street well and Furnace Brook Nos. 1, 2 and 3. Furnace Brook lies westerly of the locus beyond the South River Street wells and is a westerly tributary to the South River. The evidence presented did not clarify the question as to whether the three Furnace Brook wells are hydrologically connected to the ground water in the area of the two existing landfills. In March 1986 soil and water test results from the existing Ray landfill did show low levels of tetrachloroethylene as well as traces of trichloroethane, both of which are cleaning solvents commonly used to degrease metal.

14. The landfill proposed by the plaintiff as designed and described at trial by Mr. Lally, the consulting engineer, includes a fifty foot surface buffer of clean fill which will circumscribe the periphery and a one foot thick impervious clay liner on the base which was requested by the ZBA to be extended up the walls to provide full coverage (See Chalks B and D); neither the town landfill nor the existing Ray landfill has any form of liner. During operation as currently proposed, the fill will be enclosed in "fire prevention cells" of generally permeable fill, vent pipes will be installed to allow for the escape and treatment of waste gases and a leachate collection and containment system will be installed composed of perforated pipe leading to a "cesspool" which in turn will be pumped for treatment of the leachate so collected (See Chalk C). Prior to commen cement of operations the base of the area to be filled will be elevated by the addition of clean fill to ensure that the demolition fill materials are four feet above water table pursuant to DEQE regulations (See Exhibit No. 10) 310 CMR 19.02(4) (6). The landfill is anticipated to have a five to seven year "life span" (Chalk H) and will be capped at closure with impervious clay which will then be loamed and seeded at a 2% slope. As a result of discussions with the ZBA, Ray also added a plan for monitoring by visual inspection of the demolition waste upon its arrival and during its placement and compaction in the landfill (Exhibit No. 48).

15. As part of the state solid waste regulatory process, Ray is required to submit final operational plans to DEQE. According to Mr. Hunt of the Southeast Regional Office of DEQE, although not required by the current solid waste regulations (now being revised), the Department may require the installation and periodic testing of groundwater monitoring wells. Leachate liners and leachate collection systems are also not currently in the regulations, but liners are often required as policy. DEQE would also require submission of a detailed hydrogeological study including groundwater flows, a plan for engineering review before, during and after operation, as well as the posting of a performance bond to ensure availability of some of the costs of closing.

16. The hours proposed by the plaintiff for the new landfill will be the same as those during which the existing operation was open, and the number of trucks servicing the property would be approximately twenty-five 18-wheel dump trucks which is the current vehicular limit. The present Ray landfill does not apparently cater to Marshfield residents but the plaintiff has agreed that residents of the Town will be free to use the new facility if a special permit issues.

17. The ZBA argues that a subdivision formerly was laid out at least in part on the ground abutting the proposed site and that some of this area now is owned by the Town of Marshfield. This would not appear to be an insuperable objection to the proposed facility, however, for it is clear that to traverse the roads within the existing gravel pit would be no mean feat. An old abandoned subdivision would not be a sufficient reason to reject the special permit, but the ZBA did not rest on this ground.

The standard by which the Court must judge the decision of the ZBA was earlier set forth, and as so previously stated, the decision must stand unless it is inconsistent with the law, or is arbitrary, whimsical or capricious. E.g., Garvey v. Bd. of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980); Compare Crittenton Hastings House v. Board of Appeal of Boston, 25 Mass. App. Ct. 704 (1988) (denial not justified). The earlier decision of the ZBA made in 1977 was diametrically opposite that now before me which was entered nine years later. The differences in the two results weaken the standard rule for judicial abstention. However, circumstances appear to have changed in the interim between the two decisions. Certainly the evidence shows that problems arose with the original landfill which partially explain the difference in focus. Nonetheless, the change in the Board's interpretation of the zoning by-law cannot, however, be justified by a change in conditions. The Board, as constituted in 1977, found authority for the grant of the special permit in Use No. 24 under "Retail and Services" and I find and rule that the decision of the Board in the earlier case on the applicable law was correct. There indeed is authority in the Marshfield Zoning By-Law to permit the issuance of a special permit if the Board so elects. I do not find, however, that this error is sufficient to require that the matter be remanded to the ZBA since it is clear from the tenor of the decision and the reasons which it sets forth at length that the Board would not have granted a special permit in any event. In addition, while I might not have interpreted the factual situation in the same manner as the Marshfield ZBA; I cannot find that the Board's action was arbitrary, whimsical or capricious. No one has a right to a special permit, S. Kemble Fischer 9 Mass. App. Ct. at 481, and it cannot be denied that the Marshfield public water supply has suffered from what is still an unknown source of contamination and that some of the same contaminants have been detected in the existing Ray landfill. In view of this finding and the policy recently recommended by DEQE relative to the "zone of influence" of wells in groundwater, the Board's decision seems amply justified by the fact that the proposed site is within the so-called "Interim Zone 2" of one-half mile from existing and proposed public water supplies. Accordingly, conclusion 2c as set forth by the Board is sufficient to justify the decision which it reached, Fischer at 481, n. 7, although the DEQE policy is of recent origin. Parrish v. Board of Appeals of Sharon, 351 Mass. 561 , 568 (1967). As to the other four grounds the Court has difficulty in upholding these, but the action of the Board was justified by the possible pollution of the public water supply by the plaintiff's proposed landfill. The experts admitted that even the plaintiff's proposed application of best available pollution prevention techniques might not prove infallible.

So far as the other reasons are concerned, the experience with the existing landfill does not sustain the Board's finding that the requested use will create undue traffic congestion and impair pedestrian safety. The policy of the Commonwealth as enunciated in recent legislation makes it clear that a landfill is a use which is both essential and desirable for the public convenience. G.L. c. 21H as enacted by c. 584, §3 of the Acts of 1987. Indeed the applicant has offered to provide access to its proposed facility to residents of the Town so that it is not only the region and the non-residents of Massachusetts but those who live locally in Marshfield who would benefit.

Moreover, the terracing called for by Article XI seems antithetical to this type of facility, and I find and rule therefore that this provision is inapplicable. Finally, I find and rule that the proposed use would not impair the character and integrity of the zoning district since this particular area clearly is devoted to uses completely different from those which one would expect to find in the rural residential district properly defined geographically. However, the action of the Board is justified by the threat to the public water supply and accordingly, I find and rule that although the Board was in error in ruling that the Marshfield Zoning By-Law did not permit such a landfill, the reason for the decision may still be upheld on the ground that the facts as I have found them sustain the Board's conclusion that the landfill might pose a danger to the Marshfield water system. I do not reach the question of the site plan and plan of operation since I find and rule that the decision of the Board must be upheld so far as its refusal to grant the special permit is concerned.

Judgment accordingly.