ATTLEBORO SAND & GRAVEL CORP. v. THE CITY OF ATTLEBORO

INTRODUCTION

Plaintiff Attleboro Sand & Gravel Corporation ("ASG") brought this action under G.L. c. 240, § 14A and G.L. c. 231A, § 1, seeking a declaration that a bituminous concrete (asphalt) plant (hereinafter referred to as an "asphalt plant") was permitted by right in the Industrial Business Park ("IBP") District under the Attleboro Zoning Ordinance in effect before June 4, 2015. [Note 1], [Note 2] The case was tried on October 30, 2017. Gerald Lorusso (ASG's owner) testified for ASG, and Laura Green, Ph. D., D.A.B.T., and Christine Gibbons of Engineering Technologies Group, Inc. gave expert testimony on behalf of ASG. William McDonough, the Attleboro Building Commissioner and Zoning Enforcement Officer, testified for the City of Attleboro. The Parties stipulated to seventeen statements of fact, and the Court admitted thirteen exhibits into evidence. [Note 3]

Following receipt of the trial transcripts, the Parties each filed their proposed findings of fact and rulings of law. Closing arguments were held on February 1, 2018. On July 19, 2018, the court requested supplemental post-trial briefing regarding

the parties' respective positions relative to whether and, if so, how the Standard Industrial Classification Manual published by the U.S. Bureau of the Census, which is referenced in Section 17-1.3 of the Attleboro Zoning Ordinance, informs the meaning of the terms "Heavy Manufacturing," "Light Manufacturing" and "Processing and Treating of Raw Materials" as those terms are used in the Ordinance, and as those terms may be applied to a bituminous asphalt plant use.

The Parties' respective supplemental briefs were filed on August 15, 2018. On September 5, 2019, the City of Attleboro moved to strike ASG's supplemental brief. Attleboro opposed the Motion to Strike on September 10, 2018. I hereby DENY the City's Motion to Strike, as I have disregarded all matters discussed in the supplemental briefs that went beyond the scope of the court's order for supplemental briefing.

Now, for the reasons discussed below, I find and rule that an asphalt plant is not a permitted use of land in the IBP District.

FINDINGS OF FACT

Based on the pleadings, the agreed facts, the admitted exhibits, and the trial testimony, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues:

The ASG Site

1. Plaintiff Attleboro Sand & Gravel Corporation ("ASG") owns an approximately 186± acre tract of land located between County Road and Tiffany Street in Attleboro, Massachusetts (the "Site"). [Note 4] The Site has access from both County Road and Tiffany Street.

2. The majority of the Site is in Attleboro's Industrial Business Park "IBP" zoning district. However, the portion of the Site lying adjacent to Tiffany Street is in the Single Residence D ("SR-D") zoning district, and there are residences located along both Tiffany Street and County Road.

3. ASG or its predecessors have operated both a quarry and a stone processing plant on the Site since the 1920's. The stone processing plant is located near the Tiffany Street entrance to the Site. [Note 5]

4. Beginning around 1940, a ready-mix concrete plant was also operated on the Site, adjacent to the quarry. The concrete plant operations closed down sometime between 2009 and 2012.

5. ASG wishes to construct and operate a drum mix asphalt plant on the Site near the quarry and stone crushing operations.

6. ASG has not developed any asphalt plant design plans for the Site; so there has yet to be a review of plans by any City officials or by the Massachusetts Department of Environmental Protection ("DEP").

Bituminous Concrete (Asphalt) Production

7. The components of bituminous asphalt concrete (commonly known as asphalt) are aggregate materials (approximately 95%) consisting of crushed stone and sand mixed with RAP, [Note 6] and liquid asphalt (also known as bitumen) (approximately 5%). Liquid asphalt is an oil derivative which is the residue of the petroleum distillation process.

8. In a "drum mix plant," the liquid asphalt is stored in 25-30,000 gallon vertical tanks where it is heated to 350 degrees. The exhaust from the liquid asphalt heating system is vented outside through a stack. The heaters are fueled by either natural gas or no. 2 fuel oil. [Note 7]

9. The aggregate material is sorted by size into a series of holding bins, metered onto a collecting belt, and deposited into a dryer mixer. The aggregate material is then dried with a heater fueled by either natural gas or no. 2 fuel oil before being mixed with hot liquid asphalt.

10. The finished, hot asphalt product is stored in large, insulated, above-ground tanks or silos. As contemplated by the Plaintiff, the finished asphalt product would be conveyed by a drag slat conveyor belt up into approximately 12-60 ft. high storage silos.

11. The asphalt production process is enclosed in that the component mechanical and storage equipment, i.e., the tanks, the holding bins, the dryer mixer, and the conveyors are each enclosed, but the component equipment is not enclosed within a building.

12. The asphalt product generates heat after it is mixed.

13. The equipment used in asphalt production makes noise. Some of the equipment produces vibrations.

14. An asphalt plant generates odors and dust. Asphalt fumes are considered toxic.

15. If permitted to operate an asphalt plant, ASG would use front-end loaders and dump trucks to move materials around the Site, including moving the stone from the stone processing plant to be used at the asphalt plant. Tractor-trailer trucks would be used to bring materials (liquid asphalt and RAP) to the Site for processing at the asphalt plant, and to then haul the finished asphalt off the Site.

16. Operation of any new asphalt plant would be subject to both Massachusetts DEP and federal regulations for air quality, which require an operator to obtain an Air Quality Permit. To obtain an Air Quality Permit, any industrial use must be shown to comply with National Air Quality Standards and Massachusetts Ambient Air Guidelines. The same standards would apply to an asphalt plant as would apply to any other industrial use.

17. DEP standards are designed to reduce or minimize impacts – not to eliminate them.

18. The DEP has discretion to impose Air Quality Permit conditions, including limited hours of operation and production, and requirements for operational measures (e.g., requiring "Best Available Control Technology") such as noise abatement and dust control, if necessary.

The Attleboro Zoning Ordinance [Note 8]

19. The City of Attleboro has two zoning districts in which industrial uses are permitted: the Industrial ("I") District and the Industrial Business Park ("IBP") District.

20. The IBP District, in which most of the ASG Site is located, was created in 1994. As set forth in Ordinance § 17-2.1.3.B, the IBP District was established:

…to accommodate, encourage, attract, and concentrate environmentally sound "I[ndustrial]" and "B[usiness]" development in a park-like setting, to provide flexibility for an attractive, efficient, and economical design of an industrial business park, to encourage ingenuity and originality in site design, to provide a protective zone, and to ensure compatibility between the land uses within the park and the environment through performance standards.

21. Section 17-2.1.3.B goes on to state that:

The provisions set forth herein are established to: (a) provide a healthful operating environment for industry and business, (b) protect land uses within the park from the encroachment of other incompatible uses adverse to the operation and expansion of such land uses, (c) reduce, to a minimum, the impact of "IBP" on surrounding uses and to the development of properties adjacent to the park, (d) protect the health and safety of both workers and residents in the area, and (e) dissuade business or industry which depends, targets, or generates residential traffic as its primary source of business.

22. Pursuant to the Ordinance's § 17-3.4 Table of Use Regulations, both "Processing and Treating of Raw Materials" (sometimes referred to hereinafter as "Processing and Treating") and "Light Manufacturing, Assembling and/or Processing of Manufactured Products" (sometimes referred to hereinafter as "Light Manufacturing") are among the industrial-type uses permitted by right in the IBP District, while "Heavy Manufacturing, Assembling and/or Processing of Manufactured Products" (hereinafter referred to as "Heavy Manufacturing") is a prohibited use in the IBP District. [Note 9]

23. Pursuant to Ordinance § 17-3.1, uses not listed in the Table of Use Regulations "shall be deemed to be not permitted, provided however that such uses found by the Board of Appeals to be consistent with the general purpose and range of permitted uses in any district may be allowed therein by special permit." "Asphalt Plant" is not a use listed in the Table of Use Regulations as either permitted or prohibited in any district.

24. Pursuant to Ordinance § 17-3.2, All uses permitted by right or by special permit "shall be subject, in addition to use regulations, to all other provisions of" the Ordinance.

25. Ordinance § 17-4.0 is entitled "Dimensional & Density Regulations." Included as part of the Dimensional & Density Regulations are the § 17-4.8 "Performance and Design Standards – IBP" (the "IBP Performance Standards"). Section 17-4.8 provides that all uses within the IBP District shall adhere to the IBP Performance Standards, which are intended:

to prevent the use of land or buildings from being used, or occupied, in any manner so as to create dangerous, injurious, explosive, radioactive, or other hazardous condition, noise, vibration, unsightliness, or excessive emission of smoke, dust, fumes, toxic gases, odors or other form of air pollution, electrical or other disturbance, glare or heat, liquid or solid waste, condition or element in a manner or amount so as to adversely affect the occupants of the industrial park or surrounding natural or human environment.

26. Ordinance § 17-4.8 specifies that the IBP Performance Standards are "standards of operation for the normal daily function of uses within an 'IBP' to achieve a maximum of coordination between uses in an 'IBP' and surrounding uses."

27. The IBP Performance Standards address noise; vibration; air quality; water quality; radioactivity; glare and heat; dust, fumes, vapors, gases and odors; explosive materials; electromagnetic interference; wastes and refuse; illumination; landscaping; signs; erosion and sedimentation control; stormwater management; internal roadway network; number of principal buildings on a lot; and open space. The IBP Performance Standards do not reference or incorporate any state or federal air quality regulations.

28. Section 17-11.1 of the Ordinance sets forth rules for determining the meanings of words and phrases used in the Ordinance. Pursuant to § 17-11.1,

For the purpose of this ordinance and unless the context of usage clearly indicates another meaning, certain terms and words shall have the meaning given herein. . . . Terms and words not defined herein but defined in the Massachusetts State Building Code shall have meanings given therein unless a contrary intention clearly appears. Words not defined in either place shall have the meaning given in Webster's Unabridged Dictionary. Uses listed in the §17– 3.4 TABLE OF USE REGULATIONS – RETAIL, SERVICE AND COMMERCIAL and §17–3.4 TABLE OF USE REGULATIONS – WHOLESALE, TRANSPORTATION AND INDUSTRIAL shall be further defined by the Standard Industrial Classification Manual published by the U.S. Bureau of the Census. [Note 10]

29. Section 17-11.2 of the Ordinance defines certain of the words and terms used in the Ordinance, including the term "Light Manufacturing."

30. The term "Light Manufacturing" is defined in Ordinance § 17-11.2 as:

Fabrication, processing, or assembly employing only electric or other inoffensive motor power, utilizing hand labor or quiet machinery and processes, mechanical or chemical transformation of materials or substances, whether the new product is finished or semi-finished as raw material in some other process, into new products including the fabrication, processing, assembly or blending of materials such as lubricating oils, plastics or resin that are free from neighborhood disturbing agents, such as odors, gas fumes, smoke, cinders, flashing or bright lights, refuse matter, electromagnetic radiation, heat or vibration. [Note 11]

31. The term "Processing and Treating of Raw Materials" is not defined in the Ordinance or the State Building Code. Nor are the individual words within the term defined in the State Building Code. The term "Heavy Manufacturing, Assembling and/or Processing of Manufactured Products" is also not defined in the Ordinance or in the State Building Code. Nor are the individual words within the term.

32. Webster's Third New International Dictionary, Unabridged ("Webster's") defines "process," in relevant part, as follows:

2 : to subject to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result : put through a special process: . . .

a (1) : to prepare for market, manufacture, or other commercial use by subjecting to some process.

33. Webster's defines "treat," in relevant part, as follows:

6 a : to subject to some action (as of a chemical reagent) : act upon with some agent

b : to subject (as a natural or manufactured article) to some process to improve the appearance, taste, usefulness, or some other quality : process.

34. The § 17-3.4 Table of Use Regulations lists both Light Manufacturing and Heavy Manufacturing under the general heading of "Wholesale, Transportation and Industrial."

35. The NAICS Manual divides industries into twenty industrial sectors. Sectors 31-33 are the "Manufacturing" industry sectors. According to the NAICS Manual,

The Manufacturing sector comprises establishments engaged in the mechanical, physical, or chemical transformation of materials, substances, or components into new products. The assembling of component parts of manufactured products is considered manufacturing, except in cases where the activity is appropriately classified in Sector 23, Construction.

Establishments in the Manufacturing sector are often described as plants, factories, or mills and characteristically use power-driven machines and materials-handling equipment.…

36. According to the NAICS Manual, "[t]he materials, substances, or components transformed by manufacturing establishments are raw materials that are products of…quarrying as well as products of other manufacturing establishments…."

37. The NAICS Manual states that "[t]he boundaries of manufacturing and the other sectors of the classification system can be somewhat blurry" and lists sixteen activities which "are considered manufacturing in NAICS." The listed activities include "ready-mixed concrete production." [Note 12]

38. Based on the NAICS Manual description of the manufacturing sectors, and the classifications appearing in those sectors, bituminous asphalt concrete production is a type of manufacturing use. See NAICS Manual, Sector 32412 ("This industry comprises establishments primarily engaged in (1) manufacturing asphalt and tar paving mixtures….").

39. The NAICS Manual does not differentiate between heavy manufacturing and light manufacturing.

40. If an asphalt plant is a use permitted in the IBP District, construction of such a plant would be subject to site plan approval by the Planning Board. The site plan approval process, as set out in Ordinance § 17-15.0, however, does not require an applicant to demonstrate compliance with the IBP Performance Standards. The criteria specified for site plan approval make no reference to the IBP Performance Standards.

41. Pursuant to Ordinance § 17-7.1, it is the duty of the Inspector of Buildings to administer and enforce the provisions of the Ordinance. Such duty includes enforcement of the IBP Performance Standards, where applicable.

DISCUSSION

In anticipation of applying for local approvals to build and operate an asphalt plant on the Site, ASG filed the instant action under G.L. c. 240, § 14A seeking a binding determination that an asphalt plant is a use which is permitted by right in Attleboro's IBP District. [Note 13] See e.g., Banquer Realty Co. v. Acting Bldg. Comm'r of Boston, 389 Mass. 565 , 570-71 (1983) (action under G.L. c. 240, § 14A seeking determination of extent to which zoning regulations affected proposed use of property as construction site for concrete batching plant fell within Land Court jurisdiction). The fact that ASG has neither applied for, nor been denied local permits for, an asphalt plant on the Site is no bar to this action as the right to declaratory relief under G.L. c. 240, § 14A does not require exhaustion of administrative remedies, nor an actual controversy. Id. at 573-74. Indeed, the primary purpose of proceedings under G.L. c. 240, § 14A is to determine how and with what rights and limitations the petitioner's land may be used under the applicable zoning, particularly where there is no controversy and hence no basis for other declaratory relief. Amberwood Development Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 209 (2005).

In a nutshell, ASG contends that an asphalt plant is a use allowed by right in the IBP District because it falls within one of two use categories listed in the Ordinance's Table of Use Regulations -- either "Processing and Treating of Raw Materials," or "Light Manufacturing." The City argues that an asphalt plant, instead, falls within the category of "Heavy Manufacturing, Assembling and/or Processing" -- a use listed in the Table of Use Regulations as being prohibited in the IBP District. For the reasons discussed below, I agree with the City that an asphalt plant is a heavy manufacturing use and, therefore, prohibited in the IBP District.

Construing the Ordinance

A determination of whether production of asphalt is a use permitted by right in the IBP District starts with a close reading of the Ordinance. Contrary to Plaintiff's contention, the language of the Ordinance is not ambiguous. Although the drafting is unartful in places, and although the Ordinance does not define all relevant terms, the intent of the City's legislative body is nevertheless apparent when read, as it must be, in the context of the express purposes of the IBP District, and when it is interpreted in accordance with ordinary rules of statutory construction and the rules of construction set forth in the Ordinance itself.

In interpreting a local zoning ordinance, the court is primarily tasked to determine the local legislative body's intent "ascertained from all of [the ordinance's] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of the framers may be effectuated." Grady v. Zoning Board of Appeals of Peabody, 465 Mass. 725 , 729 (2013) (internal citations and quotations omitted.)

Under well-established principles of legislative interpretation, a zoning ordinance should be interpreted in a way that gives effect to all of its provisions and avoids rendering any provisions meaningless or superfluous. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012). If the language of the ordinance is unambiguous, its plain meaning will be applied unless doing so will lead to "an absurd or unworkable result." Id. Further, no words or provisions are read in isolation. Their meanings are to be derived from their context, including any related statement of legislative purpose. In re Custody of Victoria, 473 Mass. 64 , 73 (2015) ("[W]e consider the specific language of a statute in connection with the statute as a whole and in consideration of the surrounding text, structure, and purpose of the [act].")

In this regard, the Ordinance provides substantial guidance for interpreting the meanings of words and terms used therein in relation to the uses permitted in the IBP District. Section 17-2.1.3.B of the Ordinance provides a very detailed explanation of the purposes of the IBP District and the IBP District requirements. Among the reasons given for establishing the District are "to accommodate, encourage and attract and concentrate environmentally sound 'I[ndustrial]' and 'B[usiness]' development in a park-like setting." Four of the five stated purposes of the provisions governing the IBP District reflect the "park-like," environmentally sound development envisioned for the IBP District, including: to "provide a healthful operating environment for industry and business," to "protect land uses within the park from the encroachment of other incompatible uses," to "reduce, to a minimum, the impact of 'IBP' on surrounding uses and to the development of properties adjacent to the park", and to "protect the health and safety of both workers and residents in the area."

Consistent with the stated purposes of the IBP District, the Ordinance's Table of Use Regulations lists only two types of "industrial" uses which are permitted: "Processing and Treating of Raw Materials" and "Light Manufacturing, Assembling and/or Processing of Manufactured Products." "Heavy Manufacturing, Assembling and/or Processing of Manufactured Products" is prohibited in the IBP District. Also consistent with the IBP District purposes, Ordinance § 17-4.8 adds another layer of protection to ensure that all uses of land in the IBP District will be environmentally sound, will protect the health and safety of workers and residents in the area, and will reduce the impact of the IBP on surrounding uses and adjacent properties. It does so by establishing specific performance standards for the IBP District, and then requiring that every use of land in the IBP District comply with those performance standards.

Together, the stated IBP District purposes and the related IBP regulations supply the "legislative intent" context for interpreting words and terms used in the relevant use provisions. Section 17-11.1 of the Ordinance provides further guidance for determining the meaning of terms and words used but not defined therein, directing that if such terms and words are defined in the State Building Code, they are to have such meanings unless a contrary intention clearly appears. The Ordinance further directs that words not defined in either the Ordinance or the State Building Code shall have the meaning given in Webster's Unabridged Dictionary. [Note 14] Of special import to the issue before the court in this case, however, is the more specific guidance in § 17-11.1 that uses listed in the Table of Use Regulations under the "Retail, Service and Commercial" and the "Wholesale, Transportation and Industrial" headings "shall be further defined by the Standard Industrial Classification Manual published by the U. S. Bureau of the Census." [Note 15] As will be discussed below, the Parties have stipulated that the SIC Manual has been replaced with the North American Industry Classification System ("NAICS Manual"), published by the United States Census Bureau, and that the 2012 version applies to this case.

In light of the foregoing context, I will address the Plaintiff's assertions that an asphalt plant is a permitted use in the IBP district either as "Processing and Treating of Raw Materials" or as "Light Manufacturing."

"Processing and Treating of Raw Materials"

ASG first argues that an asphalt plant is permitted by right in the IBP District because it falls within the use category of "Processing and Treating of Raw Materials." The Ordinance does not define this particular term or any of its component words. Nor does the State Building Code contain pertinent definitions. Therefore, following the general instructions in § 17-11.1, ASG relies upon dictionary definitions of the verbs "process" and "treat" to support their argument that the production of asphalt consists of processing crushed stone – a raw material – and treating that stone with liquid asphalt to form the asphalt product.

The City counters that applying the broad dictionary definitions of these individual words is not appropriate because it would erase any meaningful distinctions between the two separately-listed 'by right' use categories of "Processing and Treating" and "Light Manufacturing." As the City reasons, the term "Processing and Treating" must mean something distinct from manufacturing (whether light or heavy). Consequently, the City contends that the phrase "Processing and Treatment of Raw Materials" should be interpreted to mean only those operations where raw materials are processed or treated so as to prepare them for further use, whereas operations in which materials (raw or otherwise) are combined or transformed to create an entirely new finished product are more consistent with the meaning of "manufacturing," as interpreted by City officials, particularly Mr. McDonough, the Building Commissioner and Zoning Enforcement Officer. [Note 16]

I agree with the City that to construe the term "processing and treating of raw materials" merely by employing the dictionary definitions for each word within that term would defeat the legislative decision to list "Processing and Treating of Raw Materials" as a separate use category from "Light Manufacturing, Assembling and/or Processing of Manufactured Products." See Kenney v. Bldg. Comm'r of Melrose, 315 Mass. 291 , 295 (1943) ("The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its spirit and intent."); Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 546-47 (2014) ("'The object of all statutory construction is to ascertain the true intent of the Legislature from the words used. If a liberal, even if not literally exact, interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, such interpretation is to be adopted rather than one which will defeat that purpose.'" (quoting Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71 , 83 (2003))).

I find additional support for classifying asphalt production as a manufacturing use by following the more specific instruction contained in § 17-11.1 of the Ordinance, that:

Uses listed in the … §17–3.4 TABLE OF USE REGULATIONS – WHOLESALE, TRANSPORTATION AND INDUSTRIAL shall be further defined by the Standard Industrial Classification Manual published by the U.S. Bureau of the Census.

The 2012 NAICS Manual [Note 17] describes the manufacturing sector as including "establishments engaged in the mechanical, physical, or chemical transformation of materials, substances, or components into new products….often described as plants, factories, or mills and characteristically us[ing] power-driven machines and materials-handling equipment." Notably, the NAICS Manual includes "products of…quarrying" among the materials transformed by manufacturing establishments, and lists "ready-mixed concrete production" [Note 18] as an example of "activities…considered manufacturing in NAICS." Additionally, the NAICS Manual classifies "establishments primarily engaged in (1) manufacturing asphalt and tar paving mixtures" under Sector 32412 within the Manufacturing Sector. In light of the Ordinance's specific rules for interpretation applicable to uses listed in the Table of Use Regulations - Wholesale, Transportation and Industrial category, and in consideration of the description of "Manufacturing" contained in the NAICS Manual and the classification of asphalt production plants therein as Manufacturing sector businesses, I find that an asphalt plant is a type of manufacturing use that is distinct from "Processing and Treating of Raw Materials."

The next question to be resolved, therefore, is whether an asphalt plant operation is "Light Manufacturing" and therefore allowed by right in the IBP District, or whether it is, instead, "Heavy Manufacturing" and therefore prohibited in the IBP District. As will be discussed below, the evidence falls far short of demonstrating that an asphalt plant is a use which meets the Ordinance definition of "Light Manufacturing."

"Light Manufacturing"

Unlike the term "Processing and Treatment of Raw Materials," the term "Light Manufacturing" is defined in the Ordinance. Section 17-11.2 defines "Light Manufacturing" as:

Fabrication, processing, or assembly employing only electric or other inoffensive motor power, utilizing hand labor or quiet machinery and processes, mechanical or chemical transformation of materials or substances, whether the new product is finished or semi-finished as raw material in some other process, into new products including the fabrication, processing, assembly or blending of materials such as lubricating oils, plastics or resin that are free from neighborhood disturbing agents, such as odors, gas fumes, smoke, cinders, flashing or bright lights, refuse matter, electromagnetic radiation, heat or vibration.

Although the definition is rather dense, its meaning can be ascertained by breaking the definition down to its fundamental parts.

The first part of the Light Manufacturing definition describes the types of manufacturing activities used to produce new, finished or semi-finished products, i.e., "fabrication, processing or assembly [of materials or substances] employing only electric or other inoffensive motor power, utilizing hand labor or quiet machinery and processes, mechanical or chemical transformation of materials or substances…." The qualifying language "employing only electric or other inoffensive power, utilizing had labor or quiet machinery and processes," plainly restricts how fabrication, processing, and assembly are conducted.

The second part of the definition further qualifies that Light Manufacturing "include[es] fabrication, processing, assembly or blending of materials such as lubricating oils, plastics or resin that are free from neighborhood disturbing agents, such as odors, gas fumes, smoke, cinders, flashing or bright lights, refuse matter, electromagnetic radiation, heat or vibration" (emphasis added).

It is the qualifications regarding methods used in fabrication, processing, or assembly (i.e., using only electric or other inoffensive motor power, and employing only hand labor or quiet machinery) [Note 19] and regarding the materials or substances that can be used to create the manufactured product (i.e., materials that are free from neighborhood disturbing agents), which distinguish light manufacturing from heavy manufacturing.

The evidence, however, falls short of demonstrating that an asphalt plant would meet these qualifications for Light Manufacturing. First, the evidence does not adequately demonstrate that asphalt production is conducted "using only electric or inoffensive motor power, utilizing only hand labor or quiet machinery." The testimony was that the heating of the aggregate and the liquid asphalt would be powered by either no. 2 fuel oil or natural gas. But there was no evidence as to the amount of noise or other emissions produced by the heating equipment. Without such evidence, there is no basis for a finding that asphalt production uses "only inoffensive motor power." Further, Mr. Lorusso admitted on cross examination that every piece of the equipment used in the production of asphalt produces noise. Yet ASG offered no evidence actually quantifying the noise produced by the equipment used to sort and convey the aggregate material, the machines used to mix the aggregate with the liquid asphalt, or the drag slat conveyor used to move the finished asphalt product up into the storage silos. Without such evidence, there is no basis for concluding that production of asphalt "utilize[es] only hand labor or quiet machinery."

The evidence also does not support a finding that the production of asphalt involves the "fabrication, processing, assembly or blending of materials . . . that are free from neighborhood disturbing agents . . . ." The definition of Light Manufacturing characterizes all of the listed agents – "such as odors, gas fumes, smoke, cinders, flashing or bright lights, refuse matter, electromagnetic radiation, heat or vibration" – as "neighborhood-disturbing" without limitation. Consequently, neither the degree of disturbance caused by such agents, nor the potential for ameliorating the disturbance, are relevant factors in the threshold determination of whether or not an asphalt plant fits the definition of Light Manufacturing. The salient question is whether the materials used in the production of asphalt are, in fact, free from each of the listed agents.

Here, the evidence is that asphalt is produced by heating and then mixing two types of materials – aggregate (made up of crushed rock, sand, and RAP) and liquid asphalt, an oil derivative. As these materials are heated, in their component state as well as when combining them, they are plainly not "free from…heat." Moreover, the evidence is that the liquid asphalt produces an odor – one of the prohibited neighborhood disturbing agents. [Note 20]

Because Plaintiff was unable to show that the materials used to produce asphalt are free from the listed neighborhood disturbing agents of heat and odor, and because Plaintiff failed to show that asphalt production employs only electric or other inoffensive motor power and uses only hand labor or quiet machinery and processes, I cannot conclude that an asphalt plant falls within the definition of "Light Manufacturing."

ASG attempts to avoid the evidentiary holes in its case by arguing that so long as an asphalt plant operation complies with the IBP Performance Standards and DEP noise and air quality regulations, the power used in asphalt production must be deemed to be inoffensive, the machinery must be deemed to be "quiet," and the materials used must be deemed "free from neighborhood disturbing agents." This argument, however, ignores the plain language of the Ordinance, including the complete absence of any reference to the IBP Performance Standards or DEP requirements in the definition of Light Manufacturing. [Note 21]

Not surprisingly, the Parties disagree as to whether or not asphalt production does, in fact, involve the fabrication, assembly, processing or blending of "materials . . . that are free from neighborhood disturbing agents." Once again, ASG takes the position that satisfaction of the federal (EPA) and state (DEP) environmental regulations, and conformance with the Ordinance's IBP Performance Standards, will ensure that an asphalt plant is free from such neighborhood disturbing agents. In other words, ASG would have this court read the Ordinance as treating any manufacturing use as a Light Manufacturing use as long as it can meet federal and state environmental standards and the IBP Performance Standards.

ASG's approach completely ignores both the express, qualifying language in the definition of Light Manufacturing, and the distinction between heavy and light manufacturing which is made in the Table of Use Regulations. ASG's argument also incorrectly conflates the definitional qualification that only materials free from neighborhood disturbing agents can be used in light manufacturing with the separate, regulatory requirement that every use of IBP- zoned land must be conducted in compliance with the IBP Performance Standards. The IBP Performance Standards do not supplant the Table of Use Regulations. The IBP Performance Standards, however, like the other "Dimensional & Density Regulations" contained in Ordinance § 17-4.0 (such as lot coverage, buffer, landscaping, and fencing regulations), apply to any use of land that is otherwise specified as permitted or permitted by special permit in the zoning district in which the land is located. [Note 22] I agree with the City that even if a particular use could be operated in a way which would meet IBP Performance Standards, that use may nevertheless be categorically impermissible per the Table of Use Regulations. [Note 23]

CONCLUSION

Based upon the facts I have found, and for the reasons discussed, I conclude that, an asphalt plant is not a permitted use in Attleboro's IBP District under the Ordinance in effect prior to June 4, 2015.

Judgment to enter accordingly.