PAULINI LOAM LLC v. PHILIP OTTAVIANA JR., SUSAN CRAIGHEAD and STEPHEN MELTZER as members, and EDWARD COSGROVE, ROBERT SINDER, KARL THOBER and DAVID NORTON as associate members, of the Framingham Zoning Board of Appeals, and the TOWN OF FRAMINGHAM.

Introduction

Plaintiff Paulini Loam LLC (“Paulini”) seeks to construct a concrete manufacturing facility on its 2.7 acre site at 597 Old Connecticut Path in Framingham. By virtue of a zoning freeze obtained in 2005, the property is governed by the provisions of the General Manufacturing District contained in the Framingham Zoning Bylaw then in effect (“the Bylaw”). In the General Manufacturing District, the Bylaw permits, as of right, “[m]anufacturing of any description utilizing processes free from neighborhood disturbing odors and/or agencies.” Bylaw, §III.G.1.c.

The site is bounded by an electrical power-transmission easement, [Note 1] a former railroad right-of-way (now a recreational trail), and wetlands and undeveloped areas to the north and east; the Massachusetts Turnpike (Interstate 90) to the south; and Old Connecticut Path (a major thoroughfare), a Shell Oil gas station and car wash, and an automobile repair facility to the west.

The Paulini property is currently leased to D&D Mulch & Landscape Inc., which uses it for the processing, storage and distribution of mulch, loam, and other landscaping materials. These are trucked to and from the site, processed and handled with loaders, and stockpiled in segregated bins. The main entrance is on Old Conne6cticut Path, just off the Turnpike. The closest residential neighborhood at Brownlea Road is approximately 780 feet away from the proposed concrete batching plant.

Framingham’s officials and the Zoning Board have raised objections to the proposed concrete plant based on concerns relating to noise, dust, vibrations, and truck traffic, which Paulini has attempted to address through numerous mitigation measures. The Massachusetts Department of Environmental Protection (“DEP”) has approved the proposed plant as mitigated, with conditions. Framingham’s building inspector, however, affirmed by the Zoning Board, has nonetheless denied a building permit. This case is Paulini’s G.L. c. 40A, §17 appeal from that denial and G.L. c. 240, §14A request for a declaration that it can build its facility as of right.

The dispute at the center of this case is as follows. Paulini contends that it can construct the proposed facility as a matter of right because, with the full array of mitigation measures in place, its manufacturing processes will be “free from neighborhood disturbing odors and/or agencies.” Bylaw, §III.G.1.c. The Zoning Board, however, asserts that the plant requires a special permit. Such a permit is required in the General Manufacturing District if, but only if, the use “would be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or because hazardous to the community on account of fire or explosion or any other cause.” Bylaw, §III.G.2.

The case was tried before me over nine days, jury-waived. Based on the testimony of the expert and lay witnesses, the exhibits admitted into evidence at trial, and my assessment of the credibility, weight and inferences to be drawn from that evidence, I find and rule, pursuant to G.L. c. 240, §14A, that the proposed concrete facility, as mitigated and with the additional restrictions set forth below, is a use free from neighborhood disturbing impacts and is thus permitted as of right. The Zoning Board’s decision is hereby VACATED, and the Board is ORDERED to issue a building permit to construct the facility with the mitigation and restrictions hereafter set forth.

Facts

These are the facts as I find them after trial.

Background

Paulini owns the 2.7 acre property at 597 Old Connecticut Path in Framingham. The property is currently leased by Paulini’s tenant, D&D Mulch & Landscape (“D&D”) and, since the 1960s, has been used for the processing, storage and distribution of mulch, loam, and other landscaping materials.

In 2005, Paulini applied for a building permit to construct a concrete batch plant, but was denied by the building inspector and subsequently by the Zoning Board. [Note 2]

In November 2005, Paulini filed a preliminary subdivision plan with the Framingham Planning Board, which was followed by a definitive plan filed on May 5, 2006. The definitive plan was endorsed by the Planning Board on February 1, 2007. In December 2005, the Framingham Town Meeting voted to rezone three contiguous parcels of land, including the Paulini property, from General Manufacturing to an Office and Professional zoning district. By virtue of the subdivision plan submitted in November 2005, the provisions of the zoning bylaw in effect at that time — prior to the rezoning — apply to the property.

Section III.G of the 2005 zoning bylaw governing uses in a General Manufacturing District provides:

G. General Manufacturing Districts

1. No building or structure shall be used or arranged or designed to be used in any part and no change shall be made in the use of the land or premises, except for one or more of the following purposes:

a. Any non-residential use permissible an as regulated in light manufacturing districts.

b. Wholesale lumber, fuel, and oil manufacturing establishments.

c. Manufacturing of any description utilizing processes free from neighborhood disturbing odors and/or agencies.

2. Uses which would be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or because hazardous to the community on account of fire or explosion or any other cause shall require a special permit from the Zoning Board of Appeals.

The Property and its Present Use

The 597 Old Connecticut Path property is approximately 2.7 acres, bounded to the south by the Massachusetts Turnpike, to the west by Old Connecticut Path, a Shell gas station and car wash to the north of the property’s entrance, further to the north by an automobile repair shop, and to the northeast and east by a former railroad right of way now used for recreational purposes and known as the Cochituate Rail Trail, and beyond that by wetlands and undeveloped land. A 250’- wide NSTAR electrical easement containing overhead power lines crosses the eastern portion of the property. The facility that Paulini proposes to construct would be approximately 780 feet from the nearest residence on Brownlea Road to the east of the property and 870 feet from the nearest residence on Maymont Drive, northeast of the property.

Since the 1960s, the property has been used for the processing, storage, and distribution of mulch, loam and other landscaping materials. Paulini’s current tenant, D&D Mulch and Landscape, has leased the property since 2006. John Doherty, the president of D&D, described his business as a retail and wholesale distributor of mulch and loam. D&D delivers mulch and loam to its customers’ houses and also supplies contractors and landscapers who buy the product on site. In a typical day, there are up to three large tractor-trailers that make deliveries to the property and 50 to 70 smaller trucks that come and go from the property. Most of the activity at the property consists of unloading mulch, loam, and crushed stone from tractor-trailer trucks, storing the material in piles or bins on the property, and loading that material with front-end loaders onto the smaller trucks for distribution.

Overview of the Proposed Facility

Paulini proposes to construct a concrete transit mix facility [Note 3] with a batch plant and loading activities that take place within a fully enclosed, pre-fabricated metal building. The facility will utilize “best available control technologies” relating to air emissions and computer controls.

The components of the batch plant that will be located entirely within the metal building include a 10 cubic yard aggregate batcher, an aggregate bin, two cement silos, a cement blower, an air compressor, a motor control center, a dust collector and silo vent filters. [Note 4] Locating the batch plant within a building minimizes noise and emissions generated during the batching process, and has been deemed a best available control technology by the DEP.

Paulini retained John Lavin, a General Manager of Earthworks Engineering, to assist with the overall design of the facility. Mr. Lavin’s firm specializes in permitting, designing aggregate facilities, and representing those facilities before regulatory agencies. A more detailed description of the overall facility and the different components of the Haganator batch plant is found in Mr. Lavin’s letter of January 22, 2008 to the Framingham building inspector. (Trial Ex. 4 at P00716).

The batch plant’s main aggregate bin holds two types of aggregate (stone) sizes. When a batch of concrete is ready to be mixed, a computer weighs the different size aggregates in the weigh hopper at the bottom of the bin. When the weighing process is complete, the hopper discharges the aggregate onto a transfer conveyor belt.

The conveyor delivers the aggregate to a chute, which loads the aggregate into the truck mixers. As the aggregate is being loaded into the drum, cement and water are added. The cement is stored in a silo located next to the weigh hopper. The weighing and batching computer discharges cement into the cement weigh hopper and then into the truck containing aggregate and water. The material is then mixed in the drum of the truck on the way to the job site.

The batch plant will employ a dust collection system also designed by the Vince Hagan company. A typical dust collector for this type of plant is a VH-245 jet pulse dust collector. Cement powder dust collected in the dust collector will be re-used and conveyed from the collector hopper to the one of the plant’s cement bins.

The plant also employs various other emissions controls to capture dust when the cement silos are recharged after new deliveries. The plant has a fabric filter, known as a baghouse, which collects dust as cement delivery trucks blow new cement into the silos through an internal ductwork system. This kind of filter system is recognized by environmental agencies as a “best available control technology.”

The batch plant will also utilize a dust shroud hood to surround the chute that fills the truck with aggregate, cement, and water during the batching process. This is another measure that serves to keep any particulate matter in the area immediately above the truck during the loading process.

Inside the building, there will also be a natural gas fired burner to heat the water during winter and a control room adjacent to the batching equipment that will house the computer controls for operating the plant.

The facility will also have several mitigation features in the area outside the metal building. These include four 3-sided sand and aggregate storage bins [Note 5], four covered aggregate feed bins (also known as hoppers [Note 6]), covered conveyors to transport the aggregate from the feed bins to the main aggregate bin located inside the building [Note 7], a truck wash area, and a 13 foot sound and visual barrier (a 3 foot berm with a 10 foot noise reduction fence) between the facility and the residential and recreational areas beyond the property. [Note 8]

The 3-sided aggregate storage bins will be equipped with a commercial water spray system and covered when conditions warrant (during windy conditions, for instance) to control dust emissions. A water truck will spray down the paved and unpaved surfaces of the property on an as-needed basis to limit dust from vehicles coming and going from the site. A street sweeper will be used to clean the paved portions of the property on an as-needed basis. These measures are all recognized as best available control technologies. Paulini will also cover gravel areas with a stone mixture to a depth of 3 to 4 inches to limit dust emissions from wind or vehicles driving through the property.

2008 Permit Application

Paulini submitted its application for a building permit on January 18, 2008. The application consisted of a cover letter, completed building permit application form, four plans — a locus plan, existing conditions plan, property plan, proposed conditions plan — and two architectural plans (a floor plan and an exterior plan) for the proposed metal building that would house the batch plant. On January 22, 2008, Paulini’s site engineer, John Lavin of Earthworks Engineering, submitted a letter providing a detailed overview of the proposed plant and mitigation measures (all of which are summarized in the discussion above) to the Building Department.

The application was hand-delivered to the Framingham building department by Paulini’s attorney and received by Michael Tusino who was the assistant director of inspectional services at the time. Prior to joining the Town of Framingham, Mr. Tusino worked as a project manager at Guaranteed Builders where he would periodically visit concrete batching plants. These included Boston Sand and Gravel in downtown Boston, Varney Brothers in Bellingham, and Rosenfeld Concrete in Hopedale. Mr. Tusino testified that these facilities were “very dusty and noisy” with people, trucks, and front-end loaders all moving around the site. All of these batch plants that Mr. Tusino was familiar with are approximately four times larger than Paulini’s proposed plant. [Note 9]

Based largely on his past experience, and having only briefly reviewed Paulini’s application, Mr. Tusino indicated to Paulini’s counsel that the application would likely require a special permit because a concrete batching plant would produce noise, dust and other objectionable features as provided in Section III.G.2 of the Zoning Bylaw. Mr. Tusino did not consider the specifics of the proposal, but rather made a quick determination based on the proposed use. As he testified, “all I did was check the use. That’s all I did.”

Mr. Tusino, however, did not make the final decision on the Paulini application. He testified that he gave the building permit application to Michael Foley who was the director of inspectional services. Since Mr. Tusino was new to his position in Framingham, Mr. Foley did not want him acting on permit applications without his review. Mr. Foley denied the permit on February 18, 2008 and cited as his reasons: (1) that the proposed concrete batch plant use required a special permit, and (2) a dimensional variance would be needed because the plans showed 7 foot aggregate storage bins (now reduced to 6 feet high as stipulated at trial, see n. 6, supra) within the 15 foot setback. [Note 10]

Paulini appealed the building inspector’s denial to the Zoning Board on March 6, 2008.

A duly noticed public hearing was held on April 8, 2008 and continued over several more meetings, which were held on May 12, June 10, July 8, July 22, August 12, September 9, October 27, November 18, and December 9, 2008. The hearing was closed on December 9 and after several written extensions, the Board voted unanimously to deny the permit on April 27, 2009 and filed its written decision with the town clerk on May 6, 2009. By the time the Board voted on the application in April, 2009, Paulini had long since secured a Limited Plan Approval Air Emissions Permit from the DEP on September 23, 2008, and had supplied a copy of the DEP approval to the Board. Paulini also supplied an air dispersion modeling analysis report prepared by AMEC Earth and Environmental Inc., an acoustical evaluation report prepared by Cavanaugh Tocci Associates, and a traffic study prepared by MS Transportation Systems, Inc. All of these reports outlined the mitigation measures that Paulini proposed to minimize or eliminate the facility’s impacts on the surrounding area.

DEP Review and Approval

Paulini’s site engineer, John Lavin, brought on Christine Gibbons of Engineering Technologies Group (ETG) to prepare Paulini’s DEP application and manage the DEP permitting process. Ms. Gibbons has been employed at ETG for approximately 20 years and has extensive experience with air permitting and compliance matters. Ms. Gibbons hired AMEC to construct an air dispersion model to evaluate air quality and Cavanaugh Tocci Associates to conduct an acoustical study. She testified at trial and provided an overview of the DEP application process and eventual approval.

Ms. Gibbons calculated the facility’s maximum “potential to emit” particulate matter at 3.6 tons per year, which under DEP regulations in effect at the time required the submission of a Limited Plan Approval (LPA) application rather than a Comprehensive Plan Approval. [Note 11] Prior to submitting Paulini’s LPA application, Ms. Gibbons met with DEP officials to discuss what types of materials and studies they would like to see included in the application.

The LPA application primarily addressed air quality and noise impacts and included the following sections:

Project Summary – This includes a short project overview, equipment description, basis for calculations, and emissions control measures proposed by Paulini

DEP Application Forms – These include a BWP AQ 01-B Limited Plan Approval Form for Non-Fuel Emissions and a BWP AQ SFC-1 Supplemental Form for Dry Air Filters

Emissions Calculations – Calculations performed by Ms. Gibbons using annual and monthly output restrictions for the facility and emission factors supplied by the United States Environmental Protection Agency’s AP-42, Compilation of Air Pollutant Emission Factors, Section 11.12 for concrete batching plants.

BACT Statements – Summary of emission control measures recognized as “best available control technologies.”

Noise Study – Report prepared by Brion Koning of Cavanaugh Tocci Associates, detailing noise mitigation measures.

Air Dispersion Model – Prepared by AMEC Earth and Environmental Inc. describing air emissions and proposed controls at the facility.

Brochures – Materials from the Vince Hagan company detailing the features and dust control measures of the Haganator batch plant.

Plans – A locus plan, existing conditions plan, plan of land, and proposed conditions plan.

(Trial Ex. 32, LPA Application). The LPA application does not specifically state when the facility will open and close each day or when concrete production will start and end, but it does state the plant will operate 6 days a week and production will be confined to ten hours a day.

After submitting the application to the DEP, a DEP official visited the property with Ms. Gibbons. Ms. Gibbons testified that a DEP site visit is a standard procedure after an application is received. After the site visit, the DEP sent Ms. Gibbons a technical deficiency letter on July 9, 2008. DEP requested, among other things, that Ms. Gibbons supply supplemental information relating to air emissions and dispersion modeling for PM2.5 emissions. [Note 12]

Ms. Gibbons submitted AMEC’s revised calculations and air dispersion modeling for PM2.5 emissions to the DEP on August 27, 2008. Ms. Gibbons’ letter also addressed other DEP concerns by committing to additional dust control measures, operating the plant at “zero visible emissions”, periodic testing of the baghouses, and monitoring and record keeping procedures.

On September 23, 2008, the DEP issued a final approval for Paulini’s LPA application, determining that it was “administratively complete and in conformance with current air pollution control engineering practices.” As Ms. Gibbons explained, DEP’s approval reflects its determination that the proposed project complies with federal and state air pollution regulations. The DEP approval imposes several general and special conditions relating to record keeping, monitoring, reporting, mitigation measures [Note 13], and operation of the facility. [Note 14] To enforce these conditions, the approval gives the DEP the authority to suspend, modify or revoke Paulini’s operation if DEP determines that it is in violation of any conditions contained in LPA approval. Finally, Special Condition 14 incorporates the representations and commitments made by Paulini in its LPA application by providing:

This Approval consists of the Application materials and this Approval letter. If conflicting information is found between these two documents, then the requirements of the Approval letter shall take precedence over the documentation in the Application materials.

(Trial Ex. 35, DEP Approval).

Impacts

Since the standard for evaluating whether the proposed facility can be built “as of right” is whether its manufacturing processes will be “free from neighborhood disturbing odors and/or agencies,” Bylaw, §III.G.1.c, the great bulk of the trial testimony focused on assessing the environmental impacts from the proposed facility. Paulini presented the expert testimony of Jeffrey Harrington of AMEC Earth and Environmental Inc., Brion Koning of Cavanaugh Tocci Associates, and William Scully, director of transportation planning at Green International Affiliates (formerly associated with MS Transportation Systems). The Board presented testimony from its counter- experts, who included Douglas Prentiss, a traffic engineer with Fay, Spofford and Thorndike, and Peter Guldberg, president of Tech Environmental, Inc., which provides consulting services with respect to air quality and noise matters.

A. Air Quality

Mr. Harrington has 25 years experience preparing and analyzing air dispersion models. His environmental consulting practice focuses on regulatory permitting and air quality services. As he explained, air dispersion modeling involves a computer model that simulates the operations of a facility, taking into account various site-specific features such as topography and weather conditions. The modeling helps to predict the concentration of air emissions at selected locations near a facility.

The environmental standards that are applicable to air dispersion modeling are the National Ambient Air Quality Standards (NAAQS) promulgated by the EPA and the Massachusetts Ambient Air Quality Standards (MAAQS) promulgated by DEP. Mr. Harrington explained that the NAAQS have evolved over the last 15 years, ahead of the MAAQS, but in permitting projects, compliance must be shown under both sets of standards.

Mr. Harrington explained that air dispersion modeling is a four-step process. The first step is to characterize the emission source. The second is to characterize the receptors, which are essentially air quality monitors beyond the property. The third step involves characterizing meteorological data. The final step is characterizing background air quality.

Source characterization involves looking at the manner and height at which a pollutant is released into the air, the emission rate, the exhaust temperature, and the location of nearby buildings that affect how a pollutant travels.

Receptors are ambient air quality monitors. As Mr. Harrington explained, these can be thought of as the people surrounding the facility who breathe the air. These receptors are arranged in the computer model in a grid around the property, which amounts to several thousand points where the dispersion model will predict the levels of emissions from the plant.

Next, meteorological data is compiled from nearby National Weather Service locations. This data consists of hourly meteorological data (temperature, wind speed, wind direction, humidity, cloud cover, and barometric pressure) collected over a five year period.

Background air quality data is gathered from local monitoring sites. Here, Mr. Harrington used two monitoring sites in Worcester County. NAAQS and MAAQS each provide methods for measuring various pollutants. As Mr. Harrington explained, for example, PM2.5 is measured by taking a three-year average of the 98th percentile of 24 hour concentrations. This is, according to Mr. Harrington, “the dirtiest air that that monitor has observed over 3 years….” Mr. Harrington took the data from the monitoring sites and performed that calculation — the three 98th percentile values of PM2.5 in a 3 year period are averaged together to get the presumed background air quality. That background air quality figure is then added to the predicted levels of emissions likely generated by the proposed facility. The sum of those two figures must be below the pollutant standards set forth in the NAAQS and MAAQS. In short, because the model assumes the worst background air quality conditions and also assumes the facility is operating at its maximum capacity, and because the sum of these figures must not exceed the NAAQS/MAAQS, the calculations are conservative.

Mr. Harrington performed three dispersion models, one in 2008 for the LPA application, another in 2009 that was submitted to the Zoning Board, and a more recent analysis in 2013.

Mr. Harrington’s 2008 dispersion model was included in Paulini’s LPA application submitted to the DEP in June 2008. In calculating the predicted emissions levels, Mr. Harrington assumed that the plant would run at its maximum hourly capacity of 140 cubic yards of concrete an hour for 10 hours per day (for the model, the hours of operation were from 6 a.m. to 4 p.m.), 7 days per week, 365 days per year. [Note 15] The calculations are contained in Table 3 of his report. (Trial Ex. 32, P02212). The emissions levels that he examined all comply with the NAAQS and MAAQS standards, with most far below those standards. The highest values in Table 3 are attributed to 24 hour level for PM10 emissions, which are at 94 percent of the NAAQS/MAAQS standards, [Note 16] and the PM10 annual limit, which is at 73 percent of the air quality standards. Based on this data, Mr. Harrington concluded that “this facility could be operated in the construct of the model, which was daytime operation, 6:00 a.m. to 4:00 p.m. with the controls specified, that it could be operated in accordance with Ambient Air Quality standards at all times.” (Trial Tr. III, 31-32). I credit this testimony.

Mr. Harrington revised these 2008 figures in response to the DEP’s technical deficiency letter by adding calculations for PM2.5 emissions. These calculations also demonstrate compliance with NAAQS and MAAQS standards for PM2.5 emissions. [Note 17] (Trial Ex. 34, Table 4 at P01477). These updated figures were submitted to the Zoning Board during Paulini’s permit appeal.

The Town contests the accuracy of the calculations contained in Ex. 34, arguing that Mr. Harrington relied on assumptions about the plant’s operation that the DEP never included as enforceable conditions in its approval letter, most notably a lack of a restriction on daily operating hours and limiting the facility to daytime operation only. [Note 18] See Defendants’ Post-Trial Brief at 32. The Town maintains that, in the absence of such enforceable conditions, emissions calculations “must be based on the plant operating continuously for 24 hours.” Id. I find the Town’s objection to the calculations contained in Exhibit 34 not credible, particularly since Paulini is agreeable to including a limitation on the facility’s hours of operation as part of any Judgment from this court, which would render the Town’s argument on this point moot. See Plaintiff’s Post-Trial Brief at 38.

In 2009, Mr. Harrington revised the dispersion model in response to comments received from a consultant retained by the Zoning Board who suggested that the model should take into account exhaust and dust emissions from vehicles traveling to and from the site. [Note 19] Mr. Harrington added that emissions data using EPA procedures to his model. He also factored in credits for various mitigation measures that will be used at the facility such as water sprays over the road surfaces and using tarps to cover storage bins and weigh hoppers. This revised model again showed compliance with state and national ambient air quality standards (NAAQS/MAAQS).

While this case was pending, Mr. Harrington updated his dispersion model in 2013. He utilized updated ambient air quality standards, and used more recent background air quality data that was obtained in 2010, 2011 and 2012. Finally, the air dispersion model that he used, AERMOD, had been updated several times since the 2008 dispersion model was produced. The 2013 model also included data from vehicle exhaust emissions and dust generated by vehicles traveling over the facility’s roads. The 2013 model likewise demonstrates that the facility will comply with all relevant ambient air quality standards. [Note 20] (See Trial Ex. 55, Table 2 Maximum Predicted Impacts for the Proposed Paulini Facility). I credit this testimony, and so find.

B. Noise

Paulini’s acoustical study was performed by Brion Koning of Cavanaugh Tocci Associates. Mr. Koning has been an employee at Cavanaugh Tocci for 34 years. He has been involved with hundreds of acoustical studies and has appeared before a variety of municipal boards and courts in this state and other states.

Mr. Koning explained that noise regulations in Massachusetts are issued by the DEP. DEP defines “noise” as:

…a type of air pollution that results from sounds that cause a nuisance, are or could injure public health, or unreasonably interfere with the comfortable enjoyment of life, property, or the conduct of business.

(Trial Ex. 28, DEP Noise Fact Sheet; Trial Tr. IV, 13). Mr. Koning described this definition as a subjective measure of noise that involves “a judgment based on a listening evaluation or interpretation.” The DEP also relies on a noise policy, which Mr. Koning described as an objective measure of noise impacts. The policy provides:

A noise source will be considered to be violating the Department’s noise regulation (310 CMR 7.10) if the source:

1. Increases the broadband sound level by more than 10 dB(A) above ambient, or

2. Produces a “pure tone” condition – when any octave band center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by 3 decibels or more.

These criteria are measured both at the property line and at the nearest inhabited residence. “Ambient” is defined as the background A-weighted sound level that is exceeded 90% of the time, measured during equipment operating hours. “Ambient” may also be established by other means with consent of the Department.

(Trial Ex. 28, DEP Noise Fact Sheet). The ambient sound measurement is expressed as “L90” which means that 90 percent of the time, the sound level in the surrounding environment is above this measurement. [Note 21]

Mr. Koning explained the steps he took in 2008 to prepare his acoustical evaluation of the proposed Paulini facility. First, he measured the existing ambient sound level environment near the property by installing sound monitors at different locations near the Paulini property. Second, he measured the sound level associated with a batching plant by visiting and obtaining data from other concrete facilities. Third, he projected the ambient background sound levels and the sound data obtained from other concrete plants to the receptor locations in order to measure the sound levels received at each receptor. Finally, he analyzed these sounds levels to evaluate compliance with DEP’s objective noise standards. I credit this mode of analysis.

Mr. Koning installed four sound monitors at different locations near the property — Brownlea Road residence, Maymont Drive residence, Reardon Park and at the property line near the Cochituate rail trail. Sound measurements were taken from Friday, April 25 to Thursday, May 1, 2008. The hourly maximum, average, and L90 sound levels are depicted on the charts included in Trial Ex. 43.

Mr. Koning used the L90 sound level measurements to establish a “baseline sound level.” He assumed the facility would operate 12 hours a day and focused on the period from 7 a.m. to 7 p.m., Monday through Saturday. He took the lowest L90 measurements for each day and then averaged those 6 numbers to obtain a week-long, L90 baseline.

Next, in order to characterize sound levels at the proposed Paulini facility, Mr. Koning and Ms. Gibbons visited two concrete batch plant sites in May 2008. One plant was unenclosed, and the other was enclosed within a building. Mr. Koning coordinated with plant operators and measured sound levels adjacent to a number of different sound sources such as trucks and equipment. [Note 22] Mr. Koning then added this data to his computer model. For the purpose of his model, Mr. Koning assumed that each of the sound sources at the concrete facility would be operating at the highest level and that all sound sources would be operating simultaneously, i.e. a “worst case” scenario.

Mr. Koning used a computer model known as CADNA (Computer Aided Design Noise Assessment) to calculate sound levels (ambient background sound plus predicted sound from the proposed facility [Note 23]) on the four receptor sites around the property. In these models, Mr. Koning assumed that the 13 foot acoustical barrier would be extended an additional 40 feet to the east from what was originally presented in Paulini’s building permit application. This was a recommendation that Mr. Koning made to provide additional sound shielding between the Cochituate trail and the truck washing area, and which Paulini has committed to implement.

As Mr. Koning explained, sound analysis hinges on three things: source, path, and receiver. Sound is generated by a source and travels along a path to a receiver where it is heard. The path that sound travels along is similar to a line of sight. As Mr. Koning explained, “[i]f you can see it, you can hear it.” (Trial Tr. IV, 80). Thus, a manufactured acoustical barrier or natural topography between a sound source and a receiver can reduce or block the force of the sound that reaches the receiver. Similarly, distance between a sound source and a receiver can affect the computer model’s results. The farther sound travels along its path, the more its power dissipates, and thus the quieter it becomes when it reaches the receiver.

Mr. Koning’s model demonstrated compliance with DEP noise standards, even when all equipment was operating simultaneously during daytime hours. (See Trial Tr. IV, 96-105; Trial Ex. 40, DEP Forms; Trial Ex. 46, Summary of noise calculations). The calculations show the facility’s operation will not increase sound levels beyond the 10 dBA limit established by DEP’s noise policy. (Trial Ex. 48, DEP Compliance Chart). I so find.

In 2009, Mr. Koning conducted additional acoustical analysis, which incorporated data supplied by Paulini’s traffic consultant regarding sound levels associated with truck traffic going to and coming from the facility on Old Connecticut Path. This was done in response to questions raised by a peer review conducted on behalf of the Zoning Board. Mr. Koning’s analysis demonstrated that factoring in additional truck traffic produced a sound increase of less than 3 dBA, which is “negligible” or imperceptible to human hearing.

In 2013, Mr. Koning conducted a new sound analysis, this time employing a different methodology than the one used in the 2008 sound analysis. In the 2008 analysis, Mr. Koning took the lowest L90 for each day and then averaged those figures together to get a weekly, baseline L90 measurement. In the 2013 analysis, Mr. Koning used an hourly L90 measure, meaning that he took an L90 measure at each hour for 24 hours a day, from April 25, 2008 to May 1, 2008. [Note 24] This approach was consistent with the analysis performed by the Town’s sound expert, Peter Guldberg. [Note 25] Mr. Koning then added the background sound, as described by the L90 measurements, to the predicted sound levels generated by a concrete plant and further assumed, for analysis purposes, that the plant would operate 24 hours a day. The results of this analysis show that the facility would violate DEP’s noise policy (meaning the combined background L90 sound and sound from the facility’s operations would exceed the 10 dBA threshold) at Reardon Park on Sundays between 1 a.m. and 4 a.m. and at the Cochituate trail on Saturday, Sunday and Monday at different times between midnight and 6 a.m. (Trial Ex. 49). In short, the model predicts noise violations only during times when the plant will not be in operation.

The Town’s expert, Mr. Guldberg, conducted his own sound monitoring at each of the four receptor sites used by Mr. Koning and also at an additional location at Old Connecticut Path. These measurements were taken during the day and evening hours of Monday, January 21, 2013. Mr. Guldberg’s analysis shows noise violations at the trail, Reardon Park, and Maymont Drive, but again these violations occur at 11 p.m. or later, when the plant will not be in operation.

In response to a peer review comment during proceedings before the Zoning Board, Mr. Koning also ran his model with a scenario that assumed the doors to the building housing the batch plant would be open during truck loading activities. In this model, Mr. Koning inputted topographical conditions around the property, which he had left out of his previous models. As he explained at trial, “many of our models are run in what we call a flat world model where the world is flat. We sometimes jokingly refer to it as pre-Columbus.” (Trial Tr. IV, 133). By taking into account the surrounding topography, the model produced results that showed a decrease in sound levels at Brownlea Road receptor and the Reardon Park receptor. There was a 1 decibel increase at the Maymont Drive receptor, which was still in compliance with DEP’s noise standards. There was no change at the Cochituate trail receptor.

After conducting these analyses using different models, Mr. Koning summed up his ultimate conclusions. First, the project would comply with DEP sound criteria, specifically the “no greater than 10 dBA above ambient sound” limitation. Second, because the property is next to the Massachusetts Turnpike, the acoustical environment is such that any projected sound from the facility would be inaudible or indistinguishable from what is already present in that environment. Finally, Mr. Koning explained that, as a minor conclusion, the building and the sound barrier would actually reduce some of the sound from the Turnpike, thus leading to an overall decrease in sound levels at the abutting neighborhoods. I credit this testimony, and so find.

C. Traffic

William Scully performed the traffic analysis for Paulini’s proposed facility. Mr. Scully is a registered professional engineer with over 30 years of experience. He has held positions at the New York State Department of Transportation, Vanasse Hangen Brustlin (a well-known firm of traffic consultants), and is presently employed by Green International Affiliates as Director of Transportation Planning. When Mr. Scully was initially retained by Paulini, he was employed at MS Transportation Systems, which is no longer in business.

Mr. Scully began his testimony by providing a broad overview of his work on this project. He visited the site to become familiar with its layout and traffic flow. He then collected traffic data such as traffic volume, vehicle speed, and crash information. He compared traffic operations under “no build” and “build” scenarios. He also examined the property’s driveway operations, conducting a level of service analysis and examining how vehicles that commonly come and go from a concrete plant would maneuver when entering and exiting the driveway.

1. The Roadway Layout

Old Connecticut Path is a two lane roadway that connects with Route 27 in Wayland, north of the Paulini property, and to the south, with Speen Street, Route 126, and Route 30, which provide access to Massachusetts Turnpike. The section of Old Connecticut Path near the Paulini property has been recently paved and, accordingly to Mr. Scully, is in “very good condition.” Old Connecticut Path has 12-foot wide lanes and shoulders of 6 to 10 feet with sidewalks on both sides.

The driveway into the Paulini property is paved and has a 40 foot “apron” at its intersection with Old Connecticut Path. The driveway narrows to 20 feet as it passes a gate and fence and then turns to gravel as it moves further into the property.

Across the street from the Paulini property is an office park at 500 Old Connecticut Path. Other commercial uses near the property include a Shell gas station, directly abutting the property to the west, and an auto repair shop. To the south of the property, beyond the Turnpike, there is another large office park, the Framingham Corporate Center, located off of Old Connecticut path. Residential neighborhoods are located to the north and northeast of the property off of Brownlea Road and Maymont Drive.

2. Traffic Count Data

Mr. Scully testified that he collected traffic data in 2008, 2009 and in 2013. He explained that the 2013 data is more substantial and the most up to date, and thus I focus on this most recent count.

Mr. Scully conducted a machine-recorded traffic count at Old Connecticut Path, just north of Speen Street, for a 24 hour period on May 29, 2013. The results of that count are shown in Trial Ex. 59. The morning peak hour was identified as 8 a.m. to 9 a.m., with approximately 1700 vehicles on Old Connecticut Path at that time. The evening peak hour occurred between 5 p.m. and 6 p.m., with approximately 2000 vehicles on the road. During off peak hours, from 9 a.m. to 4 p.m., the traffic gradually dips to its lowest point, with just under 1250 vehicles during 10 a.m. and 11 a.m., and then begins to rise again as the evening commute approaches. The total daily volume on Old Connecticut Path in May 2013 was approximately between 22,000 and 23,000 vehicles. The average speed observed from vehicles traveling along Old Connecticut Path was approximately 35 mph, in accordance with the posted speed limit. The 85th percentile speeds ranged between 36 and 39 mph.

Mr. Scully performed manual traffic counts at the intersection of the property’s driveway with Old Connecticut Path to assess the intersection’s current operation with D&D Mulch as tenant. [Note 26] These counts were also conducted on May 29, 2013, the same day as the machine- based traffic counts. During the morning peak hour between 8 a.m. and 9 a.m., 9 vehicles (3 cars, 6 trucks) entered the Paulini property and 7 (2 cars, 5 trucks) left the property. During the afternoon from 3 p.m. to 4 p.m., 7 vehicles left the property, and 8 entered. [Note 27]

Mr. Scully also reviewed historical crash data from the Massachusetts Highway Department over a three year period (2004-2006), which showed no crashes at the property’s intersection with Old Connecticut Path during those years.

Mr. Scully updated his crash data in 2013, reviewing a four year period from 2008 to 2011, but this time expanding it to look at data not only from the intersection of Paulini’s driveway with Old Connecticut Path, but also at Old Connecticut Path’s intersection with Speen Street, the office park at 500 Old Connecticut Path, and Brownlea Road. During this period, there were only two crashes near the Paulini property and, on review, Mr. Scully discovered that neither was related to vehicles coming or going from the property. [Note 28] The other intersections also had similarly low numbers of crashes, except for Old Connecticut Path’s intersection with Speen Street which had 25 crashes over the four year period. Mr. Scully explained, however, that considering Old Connecticut Path handles upwards of 20,000 vehicles per day, the crash rate at each of these intersections still fell below the district–wide rate for signalized and unsignalized intersections. Mr. Scully concluded that there was no “safety related issue out there based on any deficient operations at these intersections and based on the crash experience.” I credit this testimony.

The Town contends that the proposed facility and associated truck traffic will “exacerbate existing design flaws that render the site and nearby traffic conditions inherently dangerous.” See Defendants’ Post-Trial Brief at 14. It points to the intersection of the property’s driveway and Old Connecticut Path, which intersect at a 65 degree angle, as a particularly dangerous feature of this site. But the Town’s speculative fears are not supported by the crash data that Mr. Scully examined from 2004-2006 and then again from 2008-2011, which showed extremely low instances of traffic accidents anywhere near that intersection.

3. Evaluation of “Build” and “No Build” Scenarios

Mr. Scully next analyzed traffic conditions under “build” and “no build” scenarios. The “no build” analysis assumed that D&D Mulch would continue operating at the Paulini property, and the traffic assumptions used in this analysis were based on the traffic counts described above that took place in May 2013. Mr. Scully then explained how he made a projection about future traffic conditions if the concrete facility is built. Typically, traffic engineers consult trip generation data compiled by the Institute of Transportation Engineers (ITE) for different kinds of land uses. Mr. Scully explained, however, that there is no ITE data for a concrete plant land use, so the task then becomes how to “achieve a reasonable expectation of traffic for our analysis period” which includes the morning peak hour and the 3 p.m. to 4 p.m. time period.

Mr. Scully worked with Paulini’s site engineer, John Lavin, to understand the proposed facility’s output capacity. Assuming that the facility will produce roughly 450 cubic yards of concrete per day that will be transported in trucks with a capacity of 10 cubic yards, Mr. Scully estimated that 45 trucks will enter and leave the property in a given day. This breaks down to the facility producing 5 to 6 truck loads per hour. [Note 29] In consultation with Mr. Lavin and using the information he provided, Mr. Scully assumed 20 deliveries of aggregate material in a day, 3 cement deliveries, 10 truck drivers, 3 facility employees, and 3 other miscellaneous vehicle trips. Thus, all told, approximately 84 vehicles would enter the property and 84 vehicles would exit for a total of 168 vehicle trips in an average day.

Given these vehicle totals, Mr. Scully then made assumptions to arrive at trip figures for the relevant study periods (morning peak hour 8-9 a.m. and the afternoon hour, 3-4 p.m.). Most of the vehicle trips would be spread out over the course of the day, but Mr. Scully assumed a slightly higher number of vehicles in the morning peak hour, which accounts for things such as employees arriving to work. He estimated 10 vehicles entering the property and 7 exiting during the morning peak hour, from 8 a.m. to 9 a.m. During the 3-4 p.m. period, Mr. Scully assumed 4 to 5 ready mix trucks returning to the property, a cement truck delivery, and some employees leaving the property, amounting to 8 vehicles in and 8 vehicles out during that time.

Mr. Scully’s projections are summarized in Trial Exhibit 62. Mr. Scully’s analysis demonstrates that trip generation figures for the “build” and “no build” scenarios are comparable, and thus the proposed facility will have little to no impact on traffic conditions along Old Connecticut Path and Speen Street. (Trial Tr. V, 108-118; Trial Ex. 63, Summary of Estimated Roadway Traffic Increases). Because Old Connecticut Path handles roughly 1700 vehicles during its peak morning hour, for example, Mr. Scully concluded that “a little swing in the trip distribution, a little bit of a modification to the peak hour generation numbers is not going to change the fact that north or south of the site…the relevant impact is nonexistent or so minimal that it wouldn’t even be perceived.” (Trial Tr. V, 137). In his opinion, even if the vehicle trip projections for the peak morning hour and the 3-4 p.m hour were doubled., the results are still too small to have any meaningful impact on traffic conditions. I credit this testimony, and so find.

I reject the Town’s contention that the proposed facility will “generate a significant increase in large and heavy truck traffic at the site” because it is not supported by the evidence. See Defendants’ Post-Trial Brief at 13. As described above, Old Connecticut Path accommodates upwards of 1700 vehicles during peak hours. A few additional trucks each hour will not have a detrimental impact on traffic conditions near the property. [Note 30]

4. Level of Service Analysis

Mr. Scully used the May 2013 data to conduct a level of service (LOS) analysis of existing traffic conditions, future “no build” conditions, and future “build” conditions. (Trial Exs. 67, 68, 69). The analysis is generated by a computer software model typically used by experts in the field. The program analyzes delays that vehicles would likely experience as they prepare to make turning movements at different intersections along Old Connecticut Path, with delays rated on a scale from “A” (shortest) to “F” (longest). Mr. Scully analyzed the intersections at (1) Old Connecticut Path and Speen Street, (2) Old Connecticut Path and the property driveway, (3) Old Connecticut Path and the driveway to the office park at 500 Old Connecticut Path, and (4) Old Connecticut Path and Brownlea Road.

Because Mr. Scully projected only a slight increase in new traffic from the proposed facility, the LOS model likewise demonstrates no significant change in LOS ratings at the various studied intersections under existing, future “no build”, and future “build” conditions. (Trial Tr. V, 137-65; Trial Exs. 67, 68, 69). I credit this testimony and so find.

5. Sight Distances

Mr. Scully evaluated sight distances with respect to the Paulini property’s driveway. Specifically, he looked at two different kinds of sight distances—stopping sight distance, which evaluates the distance a vehicle traveling on Old Connecticut Path would need to come to a stop if another vehicle were exiting the driveway in comparison to the distance the driver can see (i.e., can the driver see sufficiently far ahead to have time to react appropriately) and corner sight distance, which evaluates, in the same manner, the sight distance of a driver coming down the Paulini driveway and preparing to turn onto Old Connecticut Path. Sight distances evaluate a driver’s ability to see that they need to stop, react, and either slow down or come to a complete stop.

The stopping sight distances at the driveway and Old Connecticut Path far surpassed the criteria formulated by the American Association of State Highway and Transportation Officials (AASHTO). For instance, the stopping sight distance approaching from the north of the property (i.e. the distance from which a driver can see the intersection) was in excess of 700 feet and, from the south, over 600 feet. AASHTO criteria recommends 250 feet for vehicles traveling 35 mph and 305 feet for vehicles traveling 40 mph. (Trial Ex. 64, Summary of Sight Distance Analysis). The corner sight distances at the Paulini property also far exceed AASHTO guidelines. Mr. Scully measured over 700 feet looking north from the driveway and over 550 feet looking south, well over the 40 mph guidelines of 445 feet for left turn exits and 385 feet for right turn exits. (Trial Ex. 64). I credit this testimony, and so find. Sight distances are more than adequate, and safe.

6. Turning Analysis

Mr. Scully also examined turning maneuvers for trucks of different sizes that would be entering and exiting the Paulini property if the concrete facility were built. Mr. Scully uploaded Paulini’s building permit plan into a “CAD” system and then used a program called AutoTURN to study the turning movements in and out of the driveway. [Note 31]

Mr. Scully analyzed the movements of both a 30-foot single-unit truck (SU-30) (like a dump truck or ready-mix truck) and a 40-foot wheel base truck (WB-40) similar to the kind of truck that would deliver sand or aggregate to the property. (Trial Ex. 71, AutoTURN Illustrations). The AutoTURN illustrations show that the SU-30 and WB-40 trucks are able to enter and exit the Paulini property without any problems. The illustration shows that a WB-40 truck exiting the property and turning right onto Old Connecticut Path may encroach slightly over the centerline but, as Mr. Scully explained, in situations where a private driveway or a local road intersects with a collector street like Old Connecticut Path, some level of encroachment is expected and even acceptable under Department of Transportation design guidelines for intersections. [Note 32] (Trial Tr. V, 186; Tr. VI, 10-14). Because truck traffic to and from the site will be spread out during the day and the numbers of trucks are relatively few, there will be few, if any, conflict situations where one truck is entering the property while another is exiting. (Trial Tr. V, 190-91, 195). In such situations, however, as Mr. Scully explained, the more than adequate sight distances and the length of the driveway would allow an entering truck to yield for an exiting truck, or an exiting truck could back a short ways down the driveway to accommodate an entering truck. (Trial Tr. V, 194-96). Such accommodations are typical for truck drivers who are fully familiar and experienced with them, and will not cause anything more than momentary delays and thus no traffic disruptions or impact on safety.

Mr. Scully also evaluated the turning movements of a 50 foot wheel base truck (WB-50). This category of truck includes tractor-trailers that may deliver cement to the proposed facility from time to time. [Note 33] Mr. Scully concluded, and I concur, that a WB-50 truck could enter and exit the property from all directions “without too much difficulty.” (Trial Tr. VI, 17). They can exit onto Old Connecticut Path without encroaching over the centerline, but such encroachment would make the turning maneuver easier and, for that reason, can be expected to occur on occasion. As Mr. Scully pointed out, however, tractor-trailer trucks of this size have been coming and going from D&D Mulch since 2006 without any incidents, and there is no reason to expect that there will be any if the new facility is built. (Trial Tr. VI, 18).

The Town’s traffic engineer, Mr. Prentiss, performed his own AutoTURN analysis. (Trial Tr. VII, 39-58; Trial Ex. 80). His illustrations also showed a very slight encroachment into Old Connecticut Path for WB-40 vehicles exiting the property heading north, and a somewhat more substantial encroachment for a WB-50 vehicle making the same turning movement. Mr. Prentiss’ conclusions therefore do not contradict those of Mr. Scully in any material way. Mr. Prentiss’ illustrations also show that SU-30, WB-40, and WB-50 vehicles will encroach over the centerline of the property’s driveway when entering and exiting the property. But this is not an issue. The driveway does not have delineated lanes for entering and exiting vehicles, there is no marked “centerline”, and it anticipates that trucks may drive over the centerpoint if the space is available. Due to the low volume of trucks, it is simply not an issue and, as D&D’s experience with similarly-sized trucks and volumes shows, has never been an issue. Also, as Mr. Scully explained, the sight distances and the length of the driveway give vehicles more enough room to accommodate another vehicle that is either make a turning movement into or out of the property on those few occasions when an accommodation might be needed.

D. Stormwater Management

In the Town’s Post-Trial Brief, it argues that Paulini has failed to produce a stormwater management plan as part of its application for a building permit. Paulini acknowledged that it has not yet proposed such a plan at this stage in the permitting process. As Mr. Lavin explained, there is little reason for a developer to spend tens of thousands of dollars on a stormwater management plan if the project has not received a building permit. Paulini acknowledges that it will have to address stormwater and water quality issues before the Framingham Conservation Commission (not the Zoning Board of Appeals) and that its plan will have to comply with DEP and federal stormwater requirements before its plant can operate. See Plaintiff’s Post-Trial Brief at 32. I therefore give the Town’s arguments on this point no weight.

Additional facts are discussed in the Analysis below.

Analysis

G.L. c. 40A, Section 17 Standard

This case is Paulini’s G.L. c. 40A, § 17 appeal of the Zoning Board’s decision denying a building permit for the concrete batch facility and G.L. 240, §14A request for a declaration that it can build that facility “as of right” pursuant to Bylaw §III.G.1.c. Its outcome is heavily dependent upon the proper interpretation of the Framingham Zoning Bylaw; specifically, whether the proposed concrete batch plant is a manufacturing use “utilizing processes free from neighborhood disturbing odors and/or agencies” and thus allowed by right (Bylaw §III.G.1.c), or whether it is a use that “would be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features, or because hazardous to the community on account of fire or explosion or any other cause” and thus allowed only by special permit (Bylaw §III.G.2).

The standard of review is the familiar one. The trial judge makes his own findings of facts and need not give weight to any made by the board. Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012). The judge then determines the content and meaning of the applicable statutes and by-laws and decides whether the board has chosen from those sources the proper criteria and standards to use in addressing the zoning relief requested. Id. While some measure of deference is given to a local board’s reasonable interpretation of its own zoning bylaw, an incorrect interpretation is not entitled to deference. Id. at 475, Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). If the board has materially misinterpreted or misapplied the bylaw, its decision must be vacated. See Shirley Wayside, supra.

A bylaw’s meaning is determined by the ordinary principles of statutory construction. Shirley Wayside Ltd. Partnership, 461 Mass. at 477. The court looks to the statutory language as the principal source of insight into legislative intent and, when the meaning of the language is plain and unambiguous, the statute is enforced according to its plain wording unless a literal construction would yield an absurd or unworkable result.” Id. All of its provisions must be given effect so that no part will be inoperative or superfluous. Id.

The Bylaw Does Not Impose a Special Permit Requirement on a Concrete Batch Plant Use per se. Such A Permit is Required Only if the Plant “Would be Offensive Because of Injurious or Obnoxious Noise, Vibration, Smoke, Gas, Fumes, Odors, Dust or Other Objectionable Features, or Because Hazardous to the Community on Account of Fire or Explosion or Any Other Cause” (emphasis added)

The Town contends that, because a concrete batch plant will produce at least some level of noise and emissions and, in certain configurations, might do so to an “injurious or obnoxious” degree, the Bylaw requires that any applicant seeking to establish such a use in the General Manufacturing District must first obtain a special permit from the Zoning Board. Paulini disagrees. It has never claimed that its proposed concrete batch plant will not produce any noise or air emissions. It contends, however, that its specific facility — next to other businesses, enclosed in a building, alongside the Massachusetts Turnpike, at the far corner of its property a long distance away from residential neighborhoods, and with all its mitigation measures and noise and pollution controls — will be “free from neighborhood disturbing odors and/or agencies,” and certainly not “injurious or obnoxious”, and is thus allowed by right in the General Manufacturing District. I find Paulini’s reading of the bylaw to be the correct one. The bylaw inquiry is facility-specific, as is plain from both the “by right” language of Bylaw §III.G.1.c (“manufacturing of any description utilizing processes free from neighborhood disturbing odors and/or agencies”) and the special permit language of Bylaw §III.G.2 (limited to uses which “would be offensive because of injurious or obnoxious noise, vibration, [etc.].”) (emphasis added). In short, by the plain language of the Bylaw, if the facility meets the factual requirements of Bylaw §III.G.1.c (“free from neighborhood disturbing odors and/or agencies”) and, as a factual matter, would not be offensive because of “injurious or obnoxious” noise, etc., it may be built “as of right.”

The facts of this case are very similar to those found in Banquer Realty Co. v. Acting Building Comm’n of Boston, 389 Mass. 565 (1983). In Banquer, the plaintiffs sought to build a concrete batching plant as a matter of right under Use Items 68 or 69 of the Boston Zoning Code rather than under Use Item 70, which required a special permit. 389 Mass. at 566. Uses permitted under Use Item 68 included “[a]ny industrial use other than a use described in Use Item No. 70, which does not result in noise or vibration perceptible without instruments more than fifty feet outside the perimeter of the lot.” Id. at 575. Use Item 69 allowed “[a]ny industrial use other than a use described in Use Item No. 70.” Id. Uses allowed by special permit under Use Item No. 70 included, “[a]ny use which is objectionable or offensive because of special danger or hazard, or because of cinders, dust, smoke, refuse matter, flashing, fumes, gases, vapor or odor not effectively confined to the lot, or because of noise or vibration perceptible without instruments more than two hundred and fifty feet outside the perimeter of the lot ….” Id. The Supreme Judicial Court focused on the characteristics of the specific proposal at issue (not concrete batching plants in general) and concluded that the evidence at trial established that noise and dust would largely be confined to the property and have no impact on the nearest residences over 250 feet away. Id. at 575-76. Thus, the Court concluded, the proposed use was allowed as a matter of right. Id. at 576; see also Leary v. Carver Bd. of Appeals, 1992 WL 12151897 (Mass. Land Ct. 1992) (Kilborn, J.) (finding “state of the art” septage processing facility, extensively mitigated and controlled, was not “injurious, noxious or offensive” and was thus an allowed use in industrial zoning district).

Section III.G.2 of the Zoning Bylaw, which requires a special permit for uses that would be offensive because of injurious or obnoxious noise, smoke, odors, and dust, must be read in harmony with Section III.G.1.c, which allows industrial uses free from neighborhood disturbing impacts as a matter of right. The Town contends these provisions should be read in isolation so that any industrial use that produces noise, smoke, gas, odors, or dust can only be allowed by special permit. But, as just noted, that interpretation is contrary to the plain language of §III.G.2 (which requires a special permit only for “injurious or obnoxious” levels of impacts) and would produce illogical results. Consider, for instance, a proposal for a factory that would produce noise and dust but is located in a remote section of town, far away from any abutters. Under the Town’s reading of the Bylaw, such factory, which does not disturb any neighborhood, would have to obtain a special permit in order to operate.

The impacts described in Section III.G.2 — noise, vibration, smoke, gas, fumes, odors, and dust — must be “injurious or obnoxious” to someone or something. Read in conjunction with Section III.G.1.c, the intent of the Bylaw is clear: industrial uses that produce impacts which are injurious or obnoxious because they are “neighborhood disturbing” are only allowed by special permit. Thus, the Town’s categorical approach to a concrete batch plant use must be rejected. The Bylaw requires the building inspector and the Zoning Board to consider the specific proposal and assess whether, taking into account whatever mitigation and control measures are proposed, the facility will produce environmental impacts that are objectively “neighborhood disturbing.”

The Town cites Town of Uxbridge v. Griff, 68 Mass. App. Ct. 174 (2007) in support of its contention that its zoning officials can require a special permit for particular categories of industrial uses, regardless of any proposed mitigation measures. I disagree. In Griff, the Uxbridge zoning bylaw allowed all lawful industrial uses that were not “injurious, noxious or detrimental to the Town of Uxbridge or its populace by reason of emission of dust, odors, gas, smoke, vibration or some other nuisance….” 68 Mass. App. Ct. at 176. The defendant used his land to operate a motorcycle cross country (motocross) practice course where upwards of 40 to 50 people would practice at one time. The evidence established that abutters, some who lived more than a mile away, were subjected to “unbearable noise.” Id. at 176. The facility generated dust that would cover cars at neighboring properties. Id. The police regularly responded to a variety of complaints from abutting property owners. Id. In response, the defendant proposed to install a sound barrier, but it was unclear what effect, if any, that would have on the level of noise from the facility. Id. The Appeals Court concluded the motocross use was injurious, noxious or detrimental to the town and thus not permitted in the industrial zone. Id. at 176-77.

Paulini’s proposal comes nowhere close to the motocross use described in Griff. In Griff, the detrimental impacts from the motocross facility could not be adequately mitigated. The facility could not be enclosed, and a sound barrier was unlikely to have any meaningful impact on the noise generated by 40 to 50 motorcycles operating at the same time. The Paulini proposal includes a variety of mitigation measures and state of the art controls. It has been thoroughly reviewed by the DEP, which concluded that it complied in all respects with its emissions and noise standards. The property is located next to other industrial uses, abuts a major state highway, and is at a considerable distance from the nearest residences. All of these facts distinguish the batch plant at issue here from the motocross facility in Griff and within the holding of Banquer Realty Co.

Paulini’s Proposed Concrete Facility Will Not Result in Neighborhood Disturbing Impacts

Next, the Town argues that Paulini’s proposed facility, standing on its own, will produce noise and dust that will be injurious, obnoxious and offensive to the surrounding neighborhood and thus a special permit is required. [Note 34] I disagree, both because the facts are otherwise (see the factual findings above), and for the following additional reasons.

The Town’s main argument is that the proposed facility will violate DEP noise and emissions standards if it is permitted to operate 24 hours a day, and there is nothing in Paulini’s building permit application or in the conditions set forth in the DEP approval that specifically limit the facility’s operation to daytime hours only. [Note 35] The Town argues that any limitation of the facility’s hours of operation must be accomplished by a federally enforceable condition under the Clean Air Act, and Paulini never sought such a condition during the permitting process. See Defendants’ Post-Trial Brief at 48-49.

I disagree with the Town for the following reasons. Paulini’s Limited Plan Approval application that was submitted to the DEP stated that the plant would operate 10 hours a day, though it did not specify which 10 hours. (Trial Ex. 32 at P02106). The DEP’s LPA approval letter states as a special condition:

This approval consists of the Application materials and this Approval letter. If conflicting information is found between these two documents, then the requirements of the Approval letter shall take precedence over the documentation in the Application materials.

See Trial Ex. 35, DEP LPA Approval, Special Condition No. 14. The approval letter does not specify as a condition the hours of operation, but the language contained in Special Condition No. 14 binds Paulini to the information contained in its DEP application.

Moreover, Paulini has consistently represented in these proceedings that the proposed facility will be open from 6 a.m. to 7 p.m., Monday through Saturday, and concrete production will be limited to a 10 hour period from 6 a.m. to 4 p.m. Paulini has agreed to be bound by this schedule and will accept a judgment from this Court limiting its operation and production to that schedule. Such a judgment would be fully enforceable by the Town in an action for contempt and would thus moot the Town’s argument that is there is no mechanism (federally enforceable or otherwise) to ensure that Paulini limits its operation to the hours stated at trial. [Note 36]

Setback Violations

The Town contends that, if any reason given by the Zoning Board is a valid basis for denying Paulini’s building permit application, then the Board’s decision should be upheld. See S. Volpe & Co. Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 359 (1976). It then argues that the facility as proposed in that application suffers from two setback violations requiring a variance from the Zoning Board, which was never granted. I agree that that application showed one of the alleged setback issues, but that issue has been eliminated by subsequent modifications and, in any event, would not preclude a judgment for Paulini under G.L. c. 240, §14A based on those modifications. See Cohen v. City of Somerville, 87 Mass. App. Ct. 1112 , 2015 WL 1334817 (Mem. & Order Pursuant to Rule 1:28) (Mar. 26, 2015). The second alleged setback violation, in fact, did not exist.

The alleged setback violations were these. Both arise from the General Manufacturing District’s provision for minimum side yard setbacks of 15 feet, and then Bylaw §IV.G.5.b’s provision that “[u]ncovered steps and ramps, and walls and fences no greater than six feet in height above the natural grade, may be permitted in a setback.”

First, Paulini initially proposed 3-sided aggregate storage bins, 7 feet tall, located within the setback. At trial, however, Paulini stipulated that the bins would only be 6 feet high and thus in compliance with the Bylaw. [Note 37] (Trial Tr. I, 10-13). Since the court will enforce all such stipulations, incorporating them into its judgment, there will thus be no setback violation in this respect.

Second, the Town argues in its Brief that the 6 foot noise reducing fence shown on the building permit plans between the Paulini property and the Shell gas station will be on top of a 7 foot berm and thus in violation of the setback provision limiting walls to 6 feet “above the natural grade.” See Defendants’ Brief at 54. There is, in fact, no 7 foot berm shown on Paulini’s building permit plans (only a 6 foot fence) but, at trial Paulini’s site engineer, Mr. Lavin, testified that the 6 foot fence would be atop a 7 foot berm. I find that testimony was an error on Mr. Lavin’s part. If a berm was there, it would have been shown on the plan. [Note 38] All the plan shows in this location is a 6 foot fence, with no berm. Moreover, as the plan shows, there is physically no room for a 7 foot tall berm in the tight space between the aggregate bins and the Shell gas station structure. See Trial Ex. 80. In any event, as noted above, this alleged violation does not preclude a G.L. c.240, §14A judgment that prohibits it. I thus declare that a 6 foot fence on top of a 7 foot berm would violate the Bylaw’s setback provision, but a 6 foot fence on natural grade, as shown on the modified site plan, fully complies with Section IV.G.5.b of the Bylaw.

Tolling of the Freeze Period

As described above, Paulini enjoys an 8 year zoning freeze commencing from the date of the Planning Board’s endorsement of its definitive subdivision plan, which occurred on February 1, 2007. In its Post-Trial Brief, Paulini requested a declaration that the 8 year freeze period be tolled during the pendency of this litigation. The Town has moved to strike that request, or in the alternative to reopen the evidence, contending that Paulini’s request “constitutes an attempt to assert a new cause of action for the first time….” See Defendants’ Motion to Strike Plaintiff’s Request for Declaration Under Chapter 40A, § 6 or, in the Alternative, To Reopen Evidence.

In Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000), the Supreme Judicial Court explained that the 8 year zoning freeze provided by G.L. c. 40A, § 6 applies to the land shown on the definitive subdivision plan, not the subdivision or the lots shown on that plan. The Town contends, however, that c. 40A, § 6, ¶8 is a tolling provision that applies only when “any lot shown on a plan endorsed by the planning board is the subject matter of any appeal or any litigation….” G.L. c. 40A, § 6, ¶8.

The 8 year zoning freeze period provided in c. 40A, § 6 was intended by the Legislature “to afford broad protection to developers.” Heritage Park Development Corp. v. Town of Southbridge, 424 Mass. 71 , 76 (1997). Indeed, the Court has held that developers can invoke the zoning freeze by filing inconsistent subdivision plans, or filing plans for no other reason than to obtain the protection of the zoning freeze. Id. (and cases cited therein). A developer would lose much of the protection provided by Section 6 if an opponent could appeal a project with the goal of running out the clock on the zoning freeze. The Supreme Judicial Court confronted such a situation in Heritage Park where it extended a zoning freeze for a period of time after final judgment, holding “[i]t would be an empty victory for Heritage were we to affirm the judgment of the Land Court and decline to give effect to the statutory protection afforded by the Legislature for just these circumstances.” Id. at 77. In keeping with the intent of the zoning freeze set forth in c. 40A, § 6, I find the freeze period has been tolled from the date the complaint was filed in this case.

Exhaustion of Administrative Remedies

The Town argues that the facility that Paulini has described at trial differs from what was contained in its building permit application and what was later presented before the Zoning Board, and thus Paulini has failed to exhaust its administrative remedies by not presenting what the Town contends is an updated proposal for a building permit to the building inspector. See Defendants’ Post Trial Brief at 56. I disagree. While Paulini provided more information about its proposal to the Zoning Board than what was contained in its application to the building inspector, the information that the Board considered is, to a large degree, what Paulini presented at trial. Some engineering studies have been updated with more current data, and Paulini made certain stipulations about its hours of operation, and the height and covering of the aggregate bins within the setback, but the information presented at trial did not diverge in any material way from what was available to the Zoning Board during its review. As the Zoning Board’s decision states, it had the following exhibits available for consideration: Mr. Lavin’s January 2008 overview of the proposal describing several mitigation measures, the 2008 Air Dispersion Modeling Analysis prepared by AMEC, the LPA Approval from the DEP, the 2008 Acoustical Study by Cavanaugh Tocci Associates, and the 2008 Traffic Study by Mr. Scully while he was at MS Transportation Systems. See Trial Ex. 6, Zoning Board Decision at P01077.

To the extent that Paulini submitted new information, such as updated studies, and made stipulations about hours of operation and the height of the aggregate bins, this may be properly considered under its G.L. c. 240, § 14A claim. Under this claim, Paulini asks this court to declare the extent to which the General Manufacturing provision of the Zoning Bylaw applies if the facility operates according to the evidence presented at trial. [Note 39] That request does not depend on Paulini having first exhausted its administrative remedies before the Zoning Board. See Banquer Realty Co. v. Acting Building Comm’n of Boston, 389 Mass. 565 , 573 (1983) (resort to local zoning procedures not a prerequisite to obtaining relief under c. 240, § 14A). As the Appeals Court recently explained, even engaging in the administrative process by applying for a building permit does “not alter [the] right to seek a declaratory judgment under G.L. c. 240, § 14A.” Cohen v. City of Somerville, 2015 WL 1334817 (Mass. App. Ct. Mar. 26, 2015) (Mem. & Order Pursuant to Rule 1:28).

Conclusion

For the foregoing reasons, I VACATE the Zoning Board’s decision denying Paulini’s application for a building permit to construct a concrete batching plant at this location. A concrete batching plant with the configuration, mitigation measures, and hours and other restrictions as referenced and set forth herein would “utiliz[e] processes free from neighborhood disturbing odors and/or agencies,” would not “be offensive because of injurious or obnoxious noise, vibration, smoke, gas, fumes, odors, dust or other objectionable features” or “hazardous to the community on account of fire or explosion or any other cause,” and can thus be built “as of right” without any need for a special permit. The matter is REMANDED to the Board with the direction to issue a building permit in accordance with the Judgment. Pursuant to G.L. c. 40A, §6, the zoning freeze applicable to the property is tolled for the duration of this litigation, from commencement through its final disposition.

Judgment shall enter accordingly.