Home PALMER RENEWABLE ENERGY, LLC vs. ZONING BOARD OF APPEALS OF THE CITY OF SPRINGFIELD, BRENDA DOHERTY, DANIEL MORRISSEY, HENRY NOWICK, MARIA PEREZ, JOSE GONZALEZ and WALTER GOULD.

MISC 12-461494

August 14, 2014

SANDS, J.

JUDGMENT

With:

Plaintiff Palmer Renewable Energy, LLC, filed its unverified Complaint (12 PS 449538) (the “Special Permit Case”) on June 23, 2011, pursuant to G. L. c. 40A, § 17 and G. L. c. 231A, § 1, appealing a decision of Defendant City Council of the City of Springfield (“City Council”) which revoked a special permit (the “Special Permit”) which the City Council had issued to Plaintiff on September 25, 2008, to construct a biomass energy plant (the “Project”). [Note 1] The City Council filed its Answer on August 3, 2011. On August 12, 2011, the Conservation Law Foundation filed a Motion to Intervene. A case management conference was held on August 17, 2011. On September 14, 2011, the court denied the Motion to Intervene. On December 5, 2011, the parties filed a Joint Request for a Stay pending Plaintiff’s pursuing an as-of-right building permit for the Project. At a status conference on May 28, 2013, all parties agreed to a stay in the Special Permit Case.

Plaintiff filed its unverified Complaint (12 PS 461494) on March 26, 2012, pursuant to G. L. c. 40A, § 17 and G. L. c. 231A, § 1, appealing a decision (“ZBA Decision 1") of Defendant City of Springfield Zoning Board of Appeals (the “ZBA”) dated February 27, 2012, which revoked two building permits (the “Building Permits”) that the Springfield Building Commissioner (the “Building Commissioner”) had issued to Plaintiff for the Project because Plaintiff had not received the Special Permit. ZBA Decision 1 resulted from an appeal to the ZBA by the petitioners, Michaelann Bewsee and William and Toni Keefe, (the “ZBA Decision 1 Petitioners”). Plaintiff also sought a declaratory judgment pursuant to G. L. c. 231A that the Project does not require a special permit, the Project may be built as-of-right in the Industrial A District, ZBA Decision 1 exceeded the authority of the ZBA, and that the ZBA lacked jurisdiction because the ZBA Decision 1 Petitioners lacked standing to bring the appeal. [Note 2] The ZBA filed its Answer on April 12, 2012. [Note 3] A case management conference was held on May 1, 2012. On July 30, 2012, the ZBA filed a Request for Transfer to the Hampden County Housing Court Pursuant to G. L. c. 185C, § 20, to which Plaintiff filed an Opposition on August 20, 2012. On August 29, 2012, the ZBA Decision 1 Petitioners (hereinafter the “Intervenors”) filed a Motion to Intervene along with a supporting memorandum. [Note 4]

Plaintiff filed its unverified Complaint (12 PS 468569) (together with 12 PS 461494, the “Building Permit Cases”) on August 6, 2012, also pursuant to G. L. c. 40A, § 17, appealing a decision (“ZBA Decision 2,” together with ZBA Decision 1, the “ZBA Decisions”) of the ZBA dated July 23, 2012, which revoked the same Building Permits that were revoked in ZBA Decision 1, and G. L. c. 231A, seeking declaratory judgment that the Project does not require a special permit. ZBA Decision 2 resulted from an appeal to the ZBA by petitioner City Council. [Note 5], [Note 6] Plaintiff sought the same relief as listed in the March 26, 2012 Complaint. The ZBA filed its Answer on August 30, 2012, together with a Request for Transfer to the Hampden County Housing Court Pursuant to G. L. c. 185C, § 20.

On September 6, 2012, this court allowed the two Requests for Transfer of the Building Permit Cases, and the cases were transferred to the Housing Court on September 17, 2012. On September 25, 2012, Plaintiff requested a transfer of the Building Permit Cases back to the Permit Session of the Land Court. The ZBA filed a Memorandum in Opposition to Plaintiff’s Motion to Retransfer to the Land Court on October 4, 2012. The Building Permit Cases were transferred back to the Land Court in May of 2013.

Plaintiff filed its Motion for Summary Judgment in the Building Permit Cases on November 27, 2013, together with supporting memorandum, Statement of Undisputed Material Facts, and Appendix containing the Affidavits of Victor E. Gatto, Dale T. Raczynski, Douglas J. Kelleher (the “Kelleher Affidavit”), and Peter F. Durning, Esq. On January 13, 2014, the Municipal Defendants filed their Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, Appendix containing the Affidavit of James T. Donahue, Response to Plaintiff’s Statement of Undisputed Facts and Motion to Strike references to the Special Permit Case. The Intervenors filed their Opposition and Cross-Motion on January 14, 2014, together with supporting memorandum, Response to Plaintiff’s Statement of Undisputed Facts and Statement of Additional Undisputed Material Facts. On January 31, 2014, Plaintiff filed its Reply in Opposition to the Municipal Defendants’ Opposition to Summary Judgment Motion and Motion to Strike. On February 3, 2014, Plaintiff filed its Reply in Opposition to the Intervenors’ Summary Judgment Motion, Affidavits of James N. DiMaio (“DiMaio Affidavit”) and Dale T. Raczynski (Supplemental) (the “Racynski Affidavit”), and Motion to Strike Portions of the Intervenors’ Exhibits and Statement of Undisputed Facts. Plaintiff filed its Opposition to the Intervenors’ Cross-Motion, the Intervenors’ Statement of Undisputed Material Facts, and the Municipal Defendants’ Cross-Motion on February 12, 2014. The Intervenors filed their Opposition to Plaintiff’s Motion to Strike on February 18, 2014. On March 17, 2014, Plaintiff filed a Supplemental Affidavit of Peter Durning (the “Durning Affidavit”) and a hearing was held on all motions; at that time the matter was taken under advisement. A Decision of today’s date (the “Decision”) has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that the Municipal Defendants’ Motion to Strike is DENIED.

ORDERED and ADJUDGED that Plaintiff’s Motion to Strike is ALLOWED IN PART and DENIED IN PART as follows: Exhibit A and the cover page of Exhibit B are stricken; ¶¶ 34- 38, 42, and 43 of the Intervenors’ Additional Statement of Material Facts, the remainder of Exhibit B, Exhibit C, and the Intervenors’ arguments regarding green woods chips and poisonous gas are not stricken.

ORDERED and ADJUDGED that there is an association with waste in the common definition of incineration.

ORDERED and ADJUDGED that the term “incineration” in Section 1401.3(n) of the Springfield Zoning Ordinance (the “Ordinance”) is modified by the phrase “offal, garbage or refuse.”

ORDERED and ADJUDGED that the Municipal Defendants’ interpretation of the Ordinance, that Section 1401.3(n) prohibits the burning of any product, does not correspond with the statutory purpose of Section 1401.

ORDERED and ADJUDGED that green wood chips are not refuse.

ORDERED and ADJUDGED that the Project will not emit poisonous gases as contemplated by Section 1401.3(x) of the Ordinance.

ORDERED and ADJUDGED that although some deference should be given to the ZBA’s interpretation of the Ordinance, in the case at bar such deference is outweighed by other factors.

ORDERED and ADJUDGED that the Project does not require a special permit, and the Building Permits should not have been revoked; as a result, the Building Permits are hereby reinstated.

ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is ALLOWED and the Municipal Defendants’ Cross Motion for Summary Judgment and the Intervenors’ Cross Motion for Summary Judgment are DENIED. [Note 7]

By the court.

FOOTNOTES

[Note 1] The Special Permit was a special permit for use as a “recycle center,” due to the fact that the Project involved the use of recycled wood derived from construction and demolition waste as fuel.

[Note 2] Plaintiff argued in the Complaint that the ZBA exceeded its authority in allowing the appeal because the ZBA Decision 1 Petitioners did not have standing to bring the appeal. Plaintiff argued that the ZBA Decision 1 Petitioners would not suffer any injury that was special or different from the impacts to the general public. Because this argument is not made on summary judgment and this court has received no support for this argument, the ZBA will be considered to have acted within its authority in ZBA Decision 1.

[Note 3] In the ZBA’s Answer, they raise the following affirmative defenses: 1. Failure to state a claim upon which relief may be granted. 2. Failure to comply with the notice requirements of G. L. c. 40A. 3. Claims barred by the applicable statute of limitations. 4. Claim under G. L. c. 40 barred because of insufficiency of service of process. 5. Claims barred by latches. Because no argument is presented for any of these affirmative defenses, this court treats these defenses as waived.

[Note 4] No opposition was filed.

[Note 5] Plaintiff again challenged the ZBA’s authority in its Complaint. Plaintiff alleged that the City Council did not have standing to bring the appeal to the ZBA because the Building Permits had already been revoked by ZBA Decision 1. This argument is also not made on summary judgment and this court has received no support for this argument; therefore, this court will deem the ZBA to have acted within its authority in ZBA Decision 2.

[Note 6] The City Council was not an original party to this case: on May 29, 2013, Plaintiff filed its Second Amended Complaint, adding the City Council (together with the ZBA, the “Municipal Defendants”) as a Defendant. On June 21, 2013, the Municipal Defendants filed their Answer to the Second Amended Complaint.

[Note 7] As a result of the foregoing, the parties shall notify this court as to the status of the Special Permit Case and whether it should be dismissed. The parties shall so reply on or before September 2, 2014.