W. ROBERT KNAPIK, Trustee of Douglas Road Industrial Realty Trust, v. THOMAS HANSSON, WILLIAM CORKUM, RANDY KIBBE, KEVIN QUINLAN, and CYNTHIA DONATI, as members of the Zoning Board of Appeals for the Town of Northbridge; DOUGLAS C. CURVING, as associate member of the Zoning Board of Appeals for the Town of Northbridge; JAMES S. SHEEHAN, JR., as Inspector of Buildings and Zoning Enforcement Officer for the Town of Northbridge; and the TOWN OF NORTHBRIDGE.

I. INTRODUCTION

Plaintiff W. Robert Knapik, Trustee of Douglas Road Industrial Realty Trust ("Plaintiff"), sought approval of plans to construct an in-vessel composting facility on a 2.16 acre site the Plaintiff owns at 279 Douglas Road, Northbridge, Worcester County, Massachusetts. The property is located in the Industrial One (I-1) Zoning District and is governed by the Town of Northbridge Zoning Bylaws. The governing section of the bylaw permits, as of right, in the Industrial I-1 Zoning District "manufacturing, storage, processing, fabrication, packaging and assembly, provided that such activities will not be offensive, injurious or noxious because of sewage and refuse, vibration, smoke or gas, fumes, dust or dirt, odors, danger of combustion or unsightliness." See Town of Northbridge Zoning Bylaw Section 173-16.C.

When the project was presented to the Northbridge Planning Board for site plan review, the plans were transmitted to the municipal building department. The Building Inspector for the Town of Northbridge advised the Planning Board, in a letter dated April 9, 2015, that he considered the proposed project to be for a use not permitted under the local zoning laws. The Building Inspector advised that he found that the proposed facility "would be offensive, injurious or noxious by reason of refuse, fumes and odors," and therefore would not qualify as a permitted use under the Bylaw. The same letter expressed the view that the project did not qualify as a "refuse facility" under the "Community Facility" use category of the zoning law, and so was not able to be carried out as a lawful use under this alternative ground. The Building Inspector decided that the project could not qualify as a Community Facility because the composting facility was to be operated by a for-profit non-governmental entity. Plaintiff appealed the determination made in this letter administratively to the Zoning Board of Appeals for the Town of Northbridge, which upheld the Inspector's ultimate conclusion. Plaintiff then appealed to this court under G. L. c. 40A, § 17; Plaintiff also brought this suit under G. L. 240, § 14A, requesting a declaration that the proposed facility is one which may be developed "as of right" pursuant to Section 173-16.C of the Bylaw.

II. PROCEDURAL HISTORY

On October 7, 2015, Plaintiff W. Robert Knapik, Trustee of Douglas Road Industrial Realty Trust, filed the complaint in this action. The complaint contains the following counts:

1. Count One, brought under G. L. c. 40A, § 17, seeking judgment that the decision of the Zoning Board of Appeals for the Town of Northbridge, denying the administrative appeal, exceeded the Board's authority and was "unreasonable, whimsical, arbitrary and capricious . . ."

2. Count Two, brought under G. L. c. 240, § 14A, seeking a declaration as to certain portions of the Town of Northbridge Zoning Bylaw, including that they are invalid or unconstitutional.

At the case management conference held on November 6, 2015, Plaintiff agreed to file and serve a motion for summary judgment as to issues involving the relevant use provisions of the bylaw. Plaintiff filed on January 29, 2016 a motion for summary judgment as to the Industrial I-1 use regulations in the Town of Northbridge Zoning Bylaw. After requesting an extension, Defendants filed an opposition to Plaintiff's motion for summary judgment and a cross-motion for summary judgment on March 2, 2016. Plaintiff filed an opposition to Defendants' cross-motion for summary judgment and a response to Defendants' statement of additional material facts on March 29, 2016. On April 12, 2016, the court heard the motions for summary judgment. The court allowed the defendants' cross-motion for summary judgment in part and otherwise denied the cross-motions, expressing its reasons in an elaborative order entered on the docket. [Note 1]

Nothing in the proceedings in this case since those rulings on summary judgment, including, for example, in the trial of the case, has caused the court to depart in any manner from those summary judgment rulings. The court then directed the parties to prepare for trial, concluding that material disputes of fact prevented full disposition of the case under Mass. R. Civ. P. 56.

After concluding discovery, the parties filed a joint status report on July 28, 2016. The court held a pre-trial conference on October 6, 2016. On January 13, 2017, I took a view of the locus and of another composting facility located in Marlborough, Massachusetts. Counsel for the parties, representatives of the parties, and some of the witnesses expected to testify at trial accompanied me on the view.

The case was tried to me over the course of three consecutive days from January 18, 2017 to January 20, 2017. Court reporters Star Gates Curry and Karen Goldenberg were sworn to take down the testimony and furnish transcripts. During the trial, thirty-nine exhibits were admitted in evidence, all as reflected in the transcripts, and eight witnesses testified. Plaintiff called James Berkowitz, Paul Hutnak, Nelson Widell, Whitney Hall, Robert Spencer, and Sumner Martinson. Defendants called James Sheehan and Michael Lannan.

The parties filed all post-trial briefs and requested findings of fact and rulings of law by March 6, 2017. The court heard closing arguments of counsel on June 13, 2017. After the filing of the transcript of that session, I took the case under advisement, and I now decide it.

III. FINDINGS OF FACT

On all the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise properly before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings and memorandum and arguments of the parties, I find the following facts and rule as follows:

1. Plaintiff is W. Robert Knapik, as Trustee of Douglas Road Industrial Realty Trust ("Trust") under Declaration of Trust dated September 27, 2010 and recorded with the Worcester District Registry of Deeds ("Registry") in Book 46394, Page 55.

2. Defendants are members of the Zoning Board of Appeals for the Town of Northbridge (the "Board"), an associate member of the Board, the Inspector of Buildings and Zoning Enforcement Officer for the Town of Northbridge ("Building Inspector"), and the Town of Northbridge ("Town").

3. The Trust acquired title to the locus, certain land adjacent to the parcel of land known as 279 Douglas Road, Northbridge, Worcester County, Massachusetts ("Property" or "locus") by deed ("Deed") dated September 20, 2010, recorded with the Registry in Book 46394, Page 61. The Property is more fully described in the Deed. Locus lies in the unincorporated village of Northbridge known as Whitinsville.

4. According to the Deed, the Property is shown as Lots 61 and 62 on a certain plan of land ("Recorded Plan") entitled "Plan of Land in Northbridge, Mass." dated August 8, 1989, prepared by Guerriere & Hanlon, Inc. and recorded with the Registry in Plan Book 642 as Plan 114 .

5. The Recorded Plan, which consists of two (2) sheets, indicates that Lot 61 contains approximately 46,999 square feet and Lot 62 contains approximately 47,204 square feet. The Property comprises approximately 94,203 square feet of land, or approximately 2.16 acres.

6. The Property is shown on the Northbridge Assessors' Map 3 as Parcels 122 and 123.

7. The Property is situated within the Industrial One (I-1) Zoning District.

8. Manufacturing and light industries are listed in the Table of Use Regulations of the amended Town of Northbridge Zoning Bylaw ("Bylaw") under the class "Wholesale and Manufacturing."

9. Manufacturing uses that meet the performance standards for light industrial use in Section 173-16 of the Bylaw are permitted by right within the I-1 Zoning District.

10. Section 173-16.C of the Bylaw provides that uses permitted in the I-1 Zoning District include, among others, light industrial use. Section 173-16.C further provides that light industrial use includes "manufacturing, storage, processing, fabrication, packaging and assembly, provided that such activities will not be offensive, injurious or noxious because of sewage and refuse, vibration, smoke or gas, fumes, dust or dirt, odors, danger of combustion or unsightliness."

11. On or about December 31, 2014, the Trust submitted an Application for Site Plan Review ("Application") to the Planning Board ("Planning Board") of the Town of Northbridge in connection with the proposal to develop a composting facility ("Facility" or "Northbridge Facility") on the Property.

12. The Facility is depicted on plans (collectively, "Plans") entitled "Site Development Plan, Composting Facility, 279 Douglas Road (Adjacent To), Northbridge, Massachusetts" dated December 31, 2014 (revised April 9, 2015), prepared by Andrews Survey & Engineering, Inc. ("Revised Site Plan") and on plans entitled "Proposed Compost Facility, 279 Douglas Road, Whitinsville, Massachusetts" dated January 2015 (revised April 9, 2015 (sheet A-1), January 6, 2015 (sheet A-2), and March 5, 2015 (sheet A-3)) prepared by Structor Engineering, Inc. ("Revised Architectural Plan"). A site plan review packet was received by, among others, the municipal building department.

13. On February 6, 2015, W. Robert Knapik, as counsel for the Trust, submitted a letter to James S. Sheehan, Building Inspector for the Town ("Building Inspector"), advocating that the Facility as proposed and designed would be in compliance with the Bylaw ("Opinion Letter").

14. On March 19, 2015, as part of his zoning review of the Facility, the Building Inspector visited and observed an in-vessel composting facility located in Marlborough, Massachusetts ("Marlborough Facility").

15. The Building Inspector also reviewed information related to two other in-vessel composting facilities located in Massachusetts, including a facility in Nantucket ("Nantucket Facility") and a facility in Saugus ("Saugus Facility"). The Building Inspector found that there had been odor complaints concerning the Saugus Facility.

16. In a letter to the Planning Board dated April 9, 2015, the Building Inspector reported the results of his own review of the Facility for compliance with Section 173-16.C of the Bylaw ("Building Inspector's Decision").

17. The Building Inspector wrote that he had observed "a very distinct and putrid" odor coming Marlborough Facility. He also noticed an odor from the vehicles entering and leaving the Marlborough Facility.

18. The Building Inspector observed leachate stains on the Marlborough Facility's parking lot left by the tires of vehicles leaving the facility.

19. The Building Inspector determined in his Decision that the Northbridge Facility was not an allowed manufacturing use within the I-1 district because it "would be offensive, injurious or noxious by reason of refuse, fumes and odors." The Facility therefore, in his view, would not constitute a light manufacturing use permitted in the district in accordance with Section 173-16.C of the Bylaw.

20. On May 4, 2015, Plaintiff filed an appeal of the Building Inspector's Decision to the Board.

21. The Board after hearing upheld the Building Inspector's Decision and filed with the municipal clerk on September 17, 2015 a written decision ("Board's Decision"). This is the appeal under G.L. c. 40A, § 17 from that decision by the Board.

The Proposed Facility

22. The proposed operator of the Facility is Tom Berkowitz Trucking, Inc., a Domestic Profit Corporation organized in Massachusetts in 1987 ("Operator").

23. James Berkowitz, the Operator's Manager ("Berkowitz"), would be in charge of the daily operations of the Facility. Berkowitz attended a composting training program sponsored by the U.S. Composting Council.

24. The Facility would be located approximately 300-400 feet from a residential subdivision containing approximately 60 houses. That residential neighborhood, which includes single-family homes on Cliffe Road and Hastings Drive, lies at a elevation markedly above the Property; this neighborhood (which was included in the view the court took) is somewhat removed from the locus, and is in a position to the rear of the Property, i.e., on the southerly side of the Property, farthest away from Douglas Road, which runs along the Property's northerly sideline. In addition to the steep rise in elevation, the residential neighborhood also is set off from the locus by an area of scrub and woods on the Property at its rear, which in the Plaintiff's proposal for the Facility is intended to be preserved. There also is a long linear strip of open area, which here runs parallel to the rear boundary of the Property. This strip is shown on some of the plans as "40' Wide Drain Easement - Open Space" at the rear of the locus, separating it from the base of the steep wooded elevation that then rises to the south, to climb to the residential homes overhead. The homes largely are invisible to one standing on the Property, because of their distance, difference in elevation, and the intervening terrain and vegetation. I find, based on the evidence I credit and the view I took, that even the occupants of the most proximate of the homes in this residential neighborhood will have little or no opportunity to have any real view any of the Facility below, should it be constructed according to the plans in evidence.

25. The Facility would be located approximately 30 feet from the nearest border with land of WGM Fabricators, LLC, the industrial glass operation which abuts the Property to its west. WGM has indicated its support for the Plaintiff's project. The entire immediate area in which the Property lies, up and down this stretch of Douglas Road, in decidedly industrial in its look, feel, and character, with commercial industrial and similar uses dominant here. No residential uses are apparent anywhere nearby. The fairly recently-constructed residential neighborhood which lies to the south and much above this stretch of Douglas Road is entirely separate and apart from this commercial industrial area fronting Douglas Road. Accessing the closest homes in this residential neighborhood by driving from the Property's driveway to the front of the homes on Cliffe Road, requires traveling at least half a mile, by proceeding west on Douglas Road, below the neighborhood, to Hastings Drive, and then driving up the incline of Hastings Drive to circle, back to the south and east, to reach Cliffe Road positioned considerably above the Property. As noted, a buffer of woods and brush lies at the rear of the Property, and then, passing over the 40 foot drainage easement, covers the steep rise that leads up the hill to the back of the rear yards of the single-family residential houses that are above the locus but nearest to it by measurement.

26. The Facility would process "source separated feedstock," as defined by the Department of Environmental Protection's Site Assignment Regulations for Solid Waste Facilities. 310 Code Mass. Regs. § 16.02.

27. "Feedstock" is "clean food waste" that does not include sewage sludge, animal carcasses, manure, toxic waste, rubbish, or municipal waste. Feedstock does include wood chips, a bulking agent used in the composting process.

28. "Source separated" means food waste that has been separated from other waste products at the source of the material. Sources of feedstock for the Facility will include local restaurants, schools, and grocery stores that are current or future clients of the Operator.

29. The Facility would process ten tons of clean food waste per day.

30. As shown in the Plans, and further described in the Opinion Letter and in the testimony I heard and have credited, the Facility would consist of the following elements: a receiving building, a rotary composter (or "composting drum"), a discharge building, and a biofilter.

31. The receiving building is designed for the receipt of feedstock and the loading of the composting drum. Trucks delivering feedstock would pull into the receiving building through a garage door. After the delivery truck is inside the receiving building fully, Berkowitz or one of the employees of the Operator would close the garage door. The delivery truck would deposit a load of food waste. Employees then would load the food waste into a mixer, where it would be combined with wood chips to produce a raw compost mixture. They then would load this mixture onto a conveyor belt, which would feed the mixture into the composting drum.

32. The composting drum is designed as an air-tight steel vessel, approximately sixty feet by ten feet in diameter, connected to the receiving building at one end and to the discharge building at the other. The composting drum would rotate slowly, exposing the raw compost mixture to "naturally occurring aerobic bacteria to thrive, reproduce, and decompose the waste." The mixture would remain in the composting drum for five days, during which time the heat and moisture levels in the drum would accelerate the decomposition of the mixture. Berkowitz and other employees of the Operator would monitor and maintain the temperature and moisture levels inside the composting drum. After five days, the compost mixture would be removed from the composting drum and deposited in the discharge building.

33. The discharge building is designed as a steel-framed, fabric-covered building connected to the composting drum at one end by a conveyor belt. At the opposite end of the discharge building, a sliding door would accommodate the equipment used to remove the compost for transportation to the curing site. The compost mixture would enter the discharge building via the conveyor belt. The conveyor belt would deposit the compost mixture onto a screen, which would separate the compost from any remaining wood chips that were not converted to compost in the composting drum. The compost and the wood chips then would be loaded into separate concrete bins for storage. The compost would be removed by trucks at the end of each day or every other day, and taken to an off-site location to be cured.

34. The biofilter is designed to provide odor control for the Facility. The biofilter would consist of a system of perforated polyvinyl chloride ("PVC") piping covered by a layer of "media." A mixture of compost and wood chips, the media would support a population of microbes that trap contaminants and convert them into carbon dioxide, water, and other particles. In this setup, a natural process takes place, in which the microbes serve to reduce the odor that otherwise might emanate from the various products at the facility, including from the raw materials delivered to it and the freshly-composted material which has emerged from the drum at the end of the five-day composting cycle. The system components which bring about this natural process constitute the "biofilter."

35. Both the receiving building and the discharge building would be connected directly to the biofilter through a system of fans, vents, and ducts, employing what is known as a "negative ventilation system." The negative ventilation system would prevent potentially odorous air from escaping the Facility's buildings. It does this, first, by creating negative pressure and drawing the air into the biofilter. [Note 2] The biofilter then scrubs the air which has been drawn into the biofilter, before releasing the scrubbed air through the media to the open atmosphere above and outside the biofilter (which is open to the sky) and the rest of the Facility.

36. Odorous air generated by the composting drum would also pass through the biofilter before exiting the Facility. The composting drum has an airtight connection to both the receiving building and the discharge building. An exhaust fan would provide additional protection by directing all air released from the drum into the biofilter.

37. The biofilter would require weekly maintenance. Berkowitz or another trained employee of the Operator will check that the media is moist, not soaked, and that the biofilter is draining properly. The blowers, fans, duct work, and wood chips also will be examined to confirm they are working properly and that proper air flows are maintained. The media must be changed approximately every two years to insure maximum odor mitigation continues.

38. I credit Plaintiff's expert Nelson Widell, a composting consultant with over thirty years of experience, who testified that maintaining a biofilter is "pretty easy."

39. The use of biofilters in widespread in the composting industry, because this technology, properly designed and deployed, provides an effective, efficient, and generally reliable method of mitigating any odors that otherwise would emanate from the composting facility. I credit Mr. Widell's testimony that a properly maintained biofilter is a "very reliable" means of reducing odor, and that a well-functioning biofilter smells, pleasantly, like a "forest floor."

40. I credit the testimony of Plaintiff's expert Robert Spencer, a land use planner and environmental consultant who served as the general manager of the Marlborough Facility from 1999 to 2005. Mr. Spencer testified that the difficulty of operating the proposed Northbridge Facility would be of "medium difficulty, not difficult."

41. I further credit Mr. Spencer's testimony that the odor of a biofilter is usually "sweet like uncombusted pipe tobacco" and "isn't very offensive to anyone."

42. While I credit Defendant's expert Michael Lannan's testimony that no biofilter is 100 percent effective, and that "90 percent control is the best that can be hoped for," I also credit Mr. Spencer's testimony that the Facility's proposed biofilter would provide the "highest level of odor control of any facility I'm aware of in the northeast that's processing food waste."

43. I credit the testimony of Plaintiff's expert Whitney Hall, a civil engineer who designed the Facility, that any odor from the Facility would be "nondetectable" to the residents of the adjacent subdivision. I find, as Mr. Spencer agreed, that the odor from the biofilter would be imperceptible at the adjacent residences.

Comparison with the Marlborough Facility

44. The Marlborough Facility is located 1,200 feet from the nearest residential property.

45. The Marlborough Facility, the composting operation on which the Inspector and the Board relied in their decision making, is directly adjacent to a municipal wastewater treatment plant that is currently in operation. This large abutting facility treats the raw human sewage and other wastewater components generated in that city.

46. The Marlborough Facility's composting operation, in contrast with the Plaintiff's proposed operation, processes municipal solid waste refuse, as well as human sewage sludge sourced from the adjacent Marlborough wastewater treatment plant.

47. Municipal solid waste includes most materials thrown out by residences or businesses, such as food, soiled paper, glass, plastic, metals, and clothing. Municipal solid waste may or may not be compostable.

48. Sewage sludge is human waste, including feces.

49. The Marlborough Facility processes approximately 100 tons of solid waste refuse and 50 tons of sewage sludge daily for a total of 150 tons per day.

50. The Marlborough Facility consists of the following elements: a receiving building, long composting drums, a composting building, and a biofilter.

51. The municipal solid waste is delivered and screened in the Marlborough Facility's receiving building. Sewage sludge is pumped to the receiving building from the adjacent wastewater treatment plant.

52. Both the municipal solid waste and the sewage sludge then get fed into the elevated rotating drums.

53. In contrast with the Plaintiff's proposed Facility, the drums at the Marlborough Facility are used to "preprocess" the material for composting. Actual composting does not occur inside the drums. Compostable materials begin to degrade inside the drum, while non- compostable materials do not. Preprocessing makes it easier to separate compostable material from non-compostable material after they are removed together from the drum.

54. During preprocessing, the material remains in the drums for three days.

55. At the Marlborough Facility, composting occurs inside the separate composting building. The preprocessed material is removed from the drums and separated from any non- compostable materials. The remaining compostable material is stored for composting after being laid out by workers and equipment in large long piles known as windrows.

56. The composting process takes 14-30 days at the Marlborough Facility and occurs entirely on-site inside the composting building.

57. The receiving building, the composting building, and the two drums all are connected to the Marlborough Facility's biofilter.

58. In addition to his March 19, 2015 visit, the Building Inspector attended the January 13, 2017 view taken by the court of the Marlborough Facility.

59. I credit the testimony of the Building Inspector that the odor he observed during his March 2015 visit was much stronger than the odor he observed during the view in 2017.

60. The Building Inspector testified that at the time of his March 2015 visit, he was not aware of the types of material the Marlborough Facility processed, nor that the Marlborough Facility was adjacent to a wastewater treatment plant.

61. I find that, in general, Plaintiff's experts Nelson Widell, Whitney Hall, Robert Spencer, and Sumner Martinson [Note 3] presented persuasive testimony detailing the material differences between the Northbridge Facility and the Marlborough Facility. The differences between the two facilities include the size of the facilities, their respective design and operation, the type of waste that each facility processes, where and how composting occurs in each facility, and the location of the facilities.

62. Mr. Widell testified that larger facilities which process a higher volume of material have a greater potential for odor. Mr. Hall testified that "the amount of odor generated is . . . a function of the amount of tons coming into it." Mr. Spencer noted that the quantity of material processed at Marlborough is "ten-fold larger" than the amount that would be processed at Northbridge. I generally credit all this testimony.

63. Mr. Widell testified credibly that while municipal solid waste does not have greater potential for odor than source separated food waste, the odor from food waste is "much less than . . . sewage sludge." He further testified, and I accept, that sewage sludge in particular has a "rotten egg smell" that is "much more potent" than the odor from food waste and that "more times than not" any odor detected at the Marlborough Facility is likely from sewage sludge, which is not a component of the Northbridge proposed operation.

64. Mr. Hall testified that composting on-site is an additional source of odor at the Marlborough Facility. Mr. Spencer testified that the aerated composting that occurs on-site at the Marlborough Facility is "significantly different" than composting the material at an off-site location as is planned at the Northbridge Facility. Mr. Spencer further testified that although material just removed from the composting drum would have a tobacco-like odor, it can become noxious if not properly aerated during the on-site curing process. Mr. Spencer noted that the Marlborough Facility has had problems with odor in the past for this reason. I find this testimony to be credible.

65. Mr. Spencer testified, and I find, that a primary difference between the facilities is that the Marlborough Facility is located next to a wastewater treatment plant with a "well-documented" history of odors.

66. Mr. Hall, Mr. Spencer, and Mr. Martinson each testified that the comparison between the Northbridge Facility and the Marlborough Facility is not valid. I agree with their conclusions.

Comparison with the Nantucket Facility

67. The Nantucket Facility is located 1,000 feet from the nearest residence.

68. The Nantucket Facility processes biosolids and municipal waste.

69. The Nantucket Facility also uses an in-vessel composting drum. The composting drum at the Nantucket Facility is ten times larger than the drum proposed for the Northbridge Facility. The Nantucket Facility processes ten times more material than is proposed for the Northbridge Facility.

70. Composting at the Nantucket Facility is performed on-site for at least 30 days.

71. I credit Plaintiff's expert Robert Spencer, who testified that the Nantucket Facility is "not comparable" to the Northbridge Facility. I further credit Mr. Spencer's testimony that the Nantucket Facility is "very similar [in] design and technology" to the Marlborough Facility. From this testimony I conclude that the Nantucket Facility did not provide a fair comparison on the basis of which the Inspector and the Board could have decided that the proposal in front of them would cause harmful and obnoxious odors.

Comparison with the Saugus Facility

72. The Saugus Facility is located at Rocky Hill Farm, a working pig farm. The site was formerly an asphalt plant.

73. The Building Inspector characterized the Saugus Facility as an in-vessel composting facility where composting occurs inside a drum. Plaintiff's expert Nelson Widell testified that while a drum is used at the Saugus Facility, composting does not occur, either fully or partially, inside the drum. Instead, the drum is used as a mixer to combine raw composting materials.

74. Mr. Widell further testified that at the Saugus Facility, the mixture is removed from the drum and composted on-site.

75. The mixture is placed outdoors in windrows, or long, aerated piles. Mr. Widell estimated that the piles are rotated once a week.

76. The Saugus Facility does not use a biofilter or any other method of odor control. I conclude, based on this testimony, that the Saugus Facility did not provide a fair comparison on the basis of which the Inspector and the Board could have decided that the proposal in front of them would cause harmful and obnoxious odors.

IV. DISCUSSION

Jurisdiction and Standard of Review

This case is Plaintiff's G. L. c. 40A, § 17 appeal of the Board's decision denying its Application for Site Plan Review of the proposed in-vessel composting facility and includes a G. L. c. 240, § 14A request for declaration that the Facility may be developed "as of right" pursuant to Section 173-16.C of the Bylaw. The court has jurisdiction pursuant to G. L. c. 40A, § 17, which states that "[a]ny person aggrieved by a decision of the Board of Appeals . . . may appeal to the land court department . . ." Jurisdiction over complaints under G.L. c. 240, §14A is exclusive in the Land Court Department.

The court may reverse a local zoning board's decision if it was "based on a legally untenable ground, or [was] unreasonable, whimsical, capricious, or arbitrary." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (citing MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1972)). Although the trial judge must defer to a local zoning board's reasonable interpretation of its own zoning bylaw, the board's decision must be vacated if the board materially misinterpreted or misapplied the bylaw. Paulini Loam LLC v. Ottaviana, 23 LCR 436 , 447 (Mass. 2015) (citing Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474 (2012)). On appeal, the board's decision is heard de novo. See G. L. c. 40A, § 17; Britton, 59 Mass. App. Ct. at 72 (citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558-559 (1954); Anderson v. Planning Bd. of Norton, 56 Mass. App. Ct. 904 , 905 (2002)). The trial judge "makes independent findings of fact, then determines the legal validity of the decision of the board upon the facts so found." Britton, 59 Mass. App. Ct. at 72. The judge is not required to give weight to any findings of fact made or relied upon by the board. Paulini Loam, 23 LCR at 447.

The Town's Performance Standards

Under G. L. c. 40A, § 4, a zoning bylaw that divides a city or town into districts must be "uniform within the district for each class or kind of structure or uses permitted." G. L. c. 40A, § 4. If a zoning bylaw permits a certain use, that use is allowed as of right within the district without the landowner needing "to seek permission which depends upon the discretion of local zoning authorities." SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 107 (1984). The uniformity requirement is "based upon principles of equal treatment" that prevent zoning boards from exercising "roving and virtually unlimited power to discriminate as to uses between landowners similarly situated." Id. at 107-08.

In this case, I am called upon to interpret Section 173-16.C of the Town's Bylaw. According to the Bylaw, manufacturing uses are permitted as of right in the Industrial I-1 Zoning District where the proposed Facility would be located, as long as the Bylaw's performance standards for light industrial use are met. The performance standards for light industrial use in Section 173-16 of the Bylaw require that the manufacturing activities not be "offensive, injurious, or noxious," taking into consideration whether ". . . fumes, dust or dirt, [or] odors . . ." from the premises would produce an adverse effect.

The court ruled on summary judgment that the Facility's proposed use as a composting facility qualified as a manufacturing use. As long as the Facility conforms to the Bylaw's performance standards, the Town must allow the Facility to be developed as of right. Therefore the issue before the court at trial was whether or not the Facility failed to meet the Bylaw's performance standards because it would produce offensive, injurious, or noxious odors once built and in use.

Plaintiff contends that even if the Facility would produce some level of odor, it would not violate the Bylaw because the odor would not be offensive, injurious, or noxious. Taking into account all the evidence which I credit, I, as trier of fact, agree that any odor produced by the Facility would not rise to the level of being offensive, injurious, or noxious.

A zoning bylaw must be construed reasonably and should not be interpreted "as to cause absurd or unreasonable results when the language is susceptible of a sensible meaning." North Shore Realty Trust v. Commonwealth, 434 Mass. 109 , 112 (2001) (quoting Green v. Board of Appeals of Norwood, 358 Mass. 253 , 258 (1970)). The court determines the meaning of a bylaw using the ordinary principles of statutory construction. Paulini Loam, 23 LCR at 447 (citing Shirley Wayside, 461 Mass. 469 at 477). When a term is not defined by the bylaw, it must be defined according to its "common usage." Town of Pepperell v. Mass Composting Group, Inc., 4 LCR 38 , 41 (Mass. 1996). The words offensive, injurious, and noxious are not defined in the Town's Bylaw; each must be given its plain meaning.

In similar cases, this court has used a word's dictionary definition to determine a term's plain meaning. See id. (citing Webster's New World Dictionary to define the word "noxious" in the bylaw at issue in a case involving the development of a composting facility). According to the American Heritage College Dictionary, "offensive" means "disagreeable to the senses." "Offensive," American Heritage College Dictionary, 964 (4th ed. 2002). Injurious means "causing or tending to cause injury" or "harmful." Id. at 714. Noxious means "harmful to living things," as in "noxious fumes" or "noxious waste." Id. at 952. I accept these definitions in giving meaning to the terms employed by the Northbridge Town Meeting. Based on the expert testimony I heard at trial, I find that any odor produced by the Facility would not be offensive, injurious, or noxious under the plain meaning of these terms.

Several features of the composting process planned for the Facility demonstrated to me that the Facility is unlikely to produce offensive, injurious, or noxious odors. Many of these features easily are distinguishable from features of the three other facilities which the Board relied upon in issuing its Decision. First, the Facility would process source separated food waste, a type of material that generally produces little odor during composting. The Facility would not process materials such as sewage sludge, which are far more likely to give off an offensive, putrid smell.

Second, the Facility would process a relatively small amount of material—just ten tons per day as compared with the larger Marlborough Facility's one hundred tons per day. Because the amount of odor produced through the composting process is a function of the amount of material processed, the Facility is unlikely to produce an odor strong enough to be detected over the perimeter of the Property, much less by those on nearby properties, including the residents living 300 to 400 feet or more from the Property. At trial, two of the Plaintiff's expert witnesses testified that any odor from the Facility would be undetectable to nearby residents. An odor that is undetectable at the homes in the adjacent subdivision cannot be offensive, injurious, or noxious to its residents.

Even if the composting process did generate an odor that was offensive, injurious, or noxious, the composting process would occur entirely indoors in buildings connected to the Facility's biofilter, a ventilation and odor neutralization system that will prevent the release of odor. In Town of Pepperell v. Mass Composting Group, Inc., this court has found that a composting facility that processed compost entirely indoors and was equipped with a biofilter was not "noxious" under a bylaw similar to the one at issue here. See Pepperell, 4 LCR at 38 (holding that a composting facility would not "create any dangerous, injurious, noxious, or otherwise objectional [sic] hazard," because the entire composting process would occur indoors and because the facility would contain a biofilter).

In the instant case, each of the components that comprise the Facility—the receiving building, the drum, and the discharge building—are connected to the Facility's biofilter. The biofilter's ventilation system uses negative air pressure to ensure air is "scrubbed" of its odor before it is released outside the Facility. Because the entire composting process would occur inside the Facility, including when material is dropped off in the receiving building and when it is picked up in the discharge building, any odorous air produced by the composting process would pass through the biofilter. The curing process, which occurs outdoors at other composting facilities and possibly might release some odor as decomposition occurs, would be performed at an offsite location and so could not be a source of odor.

Once odorous air has passed through the biofilter, it would no longer be offensive, injurious, or noxious. At trial, Plaintiff's expert Robert Spencer described air processed by a biofilter as smelling "sweet like uncombusted pipe tobacco" that "isn't very offensive to anyone," while Plaintiff's expert Nelson Widell characterized a biofilter as smelling like a "forest floor." Neither of their testimony, which I accept generally in this regard, describes an odor that would be offensive, injurious, or noxious.

At trial, the Board's witnesses questioned the functionality of the biofilter, with one expert noting that no biofilter is 100 percent effective, and another doubting that the receiving building is under negative pressure such that all air is redirected through the biofilter. I find persuasive the testimony of Plaintiff's expert Mr. Spencer, who described the biofilter proposed for the Facility as providing the "highest level of odor control of any facility . . . in the northeast that's processing food waste." Based on Mr. Spencer's testimony that the biofilter would be "pretty easy" to operate, I find that the Operator easily should be able to ensure that that biofilter is functional whenever the Facility is in operation.

In making these findings, and arriving at these conclusions, I have considered each of the contrary assertions by the municipal defendants and their witnesses. I have in mind, for example, the concerns that the defendants and their witnesses advanced about the fact that the construction of much of the structures used in this facility is made up of a high-grade industrial construction fabric. I decide that the better view of the evidence is not that any permeability which may exist as a result of the fabric construction will result in the release of objectionable odors, but rather the opposite--that the use of the fabric will augment the effectiveness of the overall system and not compromise its performance. I accept the evidence of the Plaintiff's experts that this construction feature can be made "very, very tight," and that, to the extent there is some slight air flow attributable to the fabric, that will benefit the operation of the facility by minimizing steam-like condensation which can occur when heat is created in a too-tight composting system, and by enhancing the air flow needed to maintain vital negative pressure.

I also reject challenges the municipal defendants mount to the method of construction of the biofilter. For example, I have considered that the system does not use a stone-filled plenum, beneath the filter media, in which the ventilating perforated piping is run; the design here calls for direct contact of the media with an impervious asphalt base, with the air vents running towards the bottom of the filtration media. I conclude that the system is designed with sufficient excess capacity to make this concern not significant. I also find lacking the defendants' position that the biofilter will fail because it is open at the top, exposing the upper layer of the filter system to snow and rain. I am convinced by testimony offered by the Plaintiff that this will not impair the system's functionality. I find that a layer of snow and ice will still allow the filtration to occur adequately, and that open air biofilters are common and used successfully in comparable climates. Neither will the system suffer from the inability to use the sprinkler system to wet the media during freezing temperatures; there will be sufficient moisture available from below to keep the filter system active. I discount evidence the defendants offered concerning the valve system used to create cells to divert the air routes through the media. I do not accept the evidence that what here is proposed is an inadequate design. Rather, I find that the design the Plaintiff presented will more than suffice to allow for periodic service, maintenance, repair, and replacement of the media and the air flow system running through the biofilter. The overall capacity of the system, given the intended use, has sufficient excess to allow temporary operation with only part of the biofilter media and air system active.

And I am not convinced, as the defendants contend, that the use of doors for access to the buildings which are part of the facility will compromise its functionality. The limited number of times these doors will need to be opened for vehicular ingress and egress, and the short time the doors will be open, minimizes this concern. The air system is powerful enough to keep the air flow moving in the correct direction, and to maintain negative air pressure, even given the occasional need to open access doors.

The system is designed with workable ways to monitor its performance. The air pressure is monitored fully. Berkowitz and others with proper training will be able to tell if and when, for any reason, the pressure of the flows is "off," signaling that there is a risk that negative air pressure might not be maintained, and that unfiltered air might release into the atmosphere, where it might cause a noxious odor to be emitted. If this happens, I find that there are sufficient controls and safeguards to catch this adverse operating condition, and mitigate the risk of odors being released until repair and correction can be implemented.

I emphasize that the court's task currently is to find the facts on de novo review to decide whether the determination by the Building Inspector (upheld by the Board in its Decision)–namely, that the proposed facility will emit prohibited odors if built and operated as proposed–is correct. On the view I take of the evidence at trial, that determination is not supported. The result of that finding is that the Board's Decision was in error, and must be overturned by the court. The municipal parties will be instructed to proceed on the basis that the proposed facility will qualify as a permitted light manufacturing use in this district.

But, importantly, should, for any reason, that not prove to be true when the project is built and being used, the municipal parties and others concerned will not be without recourse. If for any of a variety of reasons offensive, injurious, or noxious odors happen to be released, the use then would not be a permitted one under the applicable zoning law. The Building Inspector could act immediately to address that, including by the issuance of appropriate orders to require the facility to come into compliance and cease the release of those odors. Unless and until that were achieved, the municipality would be well within its rights to require the limitation or discontinuance of operations at the site. And the risk of those remedies rests on the owner and operator of the facility. All the court determines, on the findings it has made, is that the Board's Decision was in error to say that prospectively, as a categorical matter, the proposed composting facility will not at all be able to go forward, and cannot be built and put into operation as designed.

I find that Plaintiff has demonstrated that the Facility would not violate the Bylaw. Plaintiff has shown that adequate appropriate precautions will be taken to ensure that if the Facility produced some odor, the odor would not be offensive, injurious, or noxious.

The Board's Decision

In his Decision and at trial, the Building Inspector made clear that he had relied on his visit to the Marlborough Facility, and his research concerning the Nantucket Facility and the Saugus Facility, when he denied Plaintiff's Application to build the Facility. Based on testimony heard at trial, I find that the Building Inspector improperly relied on these comparisons in his Decision. Further, I find that the Board also improperly relied on these comparisons with the Marlborough, Nantucket, and Saugus Facilities in deciding to uphold the Building Inspector's Decision.

The Board may not base its decision on grounds that are relevant only to "speculative future activity" of a project. Phelan v. Delaney, 2 LCR 60 , 61 (1994). In particular, "[s]peculative possibilities are not enough to show the project is a noxious use." Pepperell, 4 LCR at 39. If an illegal use develops once the project is built, the Town can bring an enforcement action under G. L. c. 40A to bar the illegal use. Phelan, 2 LCR at 61. In this case, the Board must base its decision on the characteristics of the Northbridge Facility itself, not on the characteristics of the Marlborough, Nantucket, or Saugus Facilities, which do not provide valid grounds for comparison to what here is proposed to be built and operated.

Like the proposed Northbridge Facility, the Marlborough, Nantucket, and Saugus Facilities are in-vessel composting facilities that utilize a drum at some stage of the composting process. However, the Marlborough Facility has several features that distinguish it from the proposed Facility. First, the Marlborough Facility is approximately ten times larger than the proposed Northbridge Facility and will process ten times as much material per week. As Plaintiff's expert Nelson Widell testified, larger facilities that process a higher volume of material have a greater potential for odor.

Second, the Marlborough Facility will process municipal solid waste and sewage sludge, whereas the Northbridge Facility would process source separated food waste. Mr. Widell testified that sewage sludge is known to have a "rotten egg smell" and to be "much more potent" than the odor from food waste. Mr. Widell further testified that "more times than not" any odor detected at the Marlborough Facility is probably sewage sludge, particularly because the Marlborough Facility is located next to a wastewater treatment plant. The Building Inspector testified that he was not aware of the type of material the Marlborough Facility processed or that the Marlborough Facility was adjacent to a wastewater treatment plant when he made his Decision.

Third, the location of the composting at the Marlborough Facility is different than what is proposed for the Northbridge Facility. While the curing process would occur offsite at the Northbridge Facility, it occurs onsite at Marlborough in large open piles known as "windrows." Plaintiff's expert Mr. Spencer testified that the material laid out in this fashion can become noxious if not properly aerated during the on-site curing process, and that the Marlborough Facility has had problems with odor in the past for this reason.

The Nantucket Facility and the Saugus Facility also differ from the proposed the Northbridge Facility. Like the Marlborough Facility, the Nantucket Facility is ten times larger than the proposed Northbridge Facility and processes ten times more material. The Nantucket Facility also processes a different type of material—biosolids and municipal waste. At both the Nantucket and the Saugus Facilities, composting occurs onsite.

Because they differ materially in terms of size, composting materials, and composting processes, it was improper for the Building Inspector to compare the Marlborough, Nantucket, and Saugus Facilities with the proposed Northbridge Facility. The Building Inspector and the Board should have relied on Plaintiff's Application and Plans rather than on the speculative possibility that the Northbridge Facility would produce odors and encounter problems similar to those faced by the Marlborough, Nantucket, and Saugus Facilities. The facts that I have found, on all the evidence I credit, establish that the proposed use of the Facility in Northbridge, if constructed and operated as intended and as put before the municipal officials, will "not be offensive, injurious or noxious..." as prohibited under Section 173-16.C. The proposed Facility will constitute a proper lawful use under that section, light manufacturing, a use allowed in the I-1 Zoning District.

The Board's Decision is to be annulled. The defendants will be directed to treat and process the proposed composting facility, for zoning purposes, as a use allowed in this district by the local zoning law.

Judgment accordingly.