Fish v. Accidental Auto Body, Inc.

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18-P-345 Appeals Court
JONATHAN FISH1 & another2 vs. ACCIDENTAL
AUTO BODY, INC., & others.3
No. 18-P-345.
Barnstable. November 7, 2018. - May 24, 2019.
Present: Agnes, Blake, & Neyman, JJ.
Zoning, Special permit, Automobile repair shop, Timeliness of
appeal, By-law. Practice, Civil, Zoning appeal, Burden of
proof. Environment, Air pollution.
Civil action commenced in the Superior Court Department on
December 8, 2014.
The case was heard by Gary A. Nickerson, J., and a motion
to amend judgment was considered by him.
Christopher G. Senie for the plaintiffs.
Shannon Dunn Resnick for the Accidental Auto Body, Inc., &
another.
1 In conformity with our practice, we spell the parties'
names according to how they are spelled in the operative
complaint.
2 Susan Fish.
3 Robert A. Lawton and zoning board of appeals of Mashpee.
2
AGNES, J. On November 20, 2014, the zoning board of
appeals of Mashpee (board) granted the application of Accidental
Auto Body, Inc. (Auto Body), for a special permit allowing it to
construct an auto body shop on property located in the economic
development and industrial corporation area of the town of
Mashpee's (town's) industrial zoning district. The plaintiffs,
residential abutters of the locus who claimed harm from
potential air pollution and noise impacts,4 appealed to the
Superior Court pursuant to G. L. c. 40A, § 17, in an effort to
overturn the decision. Following a trial, a judge affirmed the
board's decision. The plaintiffs now appeal from the judgment,
asserting that Auto Body did not meet its burden under the
town's bylaw (bylaw) to prove that the plaintiffs would not be
harmed by chemicals released into the air. For the reasons that
follow, we conclude that the board and the judge erred in
determining that Auto Body complied with § 174-24(C)(2) of the
bylaw, which imposes on the party seeking a special permit the
burden to establish that "the proposed use . . . will not
adversely affect public health or safety . . . [and] will not
significantly decrease . . . air quality." Accordingly, we
vacate the judgment.5
4 The plaintiffs do not pursue on appeal any issues
pertaining to noise impacts.
5 Nothing in this opinion should be understood as a retreat
3
Background. We draw the facts from the judge's findings
and undisputed testimony, noting where the plaintiffs contend
they are clearly erroneous. Auto Body proposed to build a 9,000
square foot building approximately seventy-four feet away from
the plaintiffs' northern boundary line.6 Auto Body's work will
include painting of repaired vehicles, generally requiring two
layers of top coat which contain isocyanates. Isocyanates are a
"useful" but "harmful" molecule. In contrast to the water-based
preliminary coats of paint, which cannot withstand moisture,
water, and sunlight, the carbon-based isocyanates in the top
coats create bonds that are almost indestructible and ensure a
durable finish.
The top coats and base coats will be applied by spray in a
paint booth, "a fully enclosed structure within the auto body
shop building." The judge found, as the plaintiffs' expert
conceded, that Auto Body proposes to use the best available
from the traditional deference courts show to the legal
conclusions reached by local zoning boards acting within the
scope of their authority, and the respect for judicial findings
of fact when supported by evidence in the record. However, this
is a case in which the judge's findings of fact acknowledged a
health and safety risk as a result of the grant of the special
permit. In such a case, local and State law impose on the
applicant, not those in opposition to the special permit, the
burden of establishing that the proposed use will not adversely
affect public health or safety.
6 The judge did not make a finding regarding the distance,
but Auto Body's civil engineer testified that the distance is
seventy-four feet and the board made that same finding.
4
filter system and to locate the vent as far away from the
plaintiffs' properties as possible.7 Nonetheless, the judge
found that two percent of the isocyanates will escape with the
exhaust. He also found that although isocyanates are unstable,
they are rendered harmless within minutes after they become
airborne. These findings of fact are consistent with the
testimony of one of the plaintiffs' expert witnesses, Dr.
William Sawyer, a professional toxicologist.8,9 The judge did
7 Although the judge found that "[t]he predominant winds are
from the southwest, tending to move any exhaust away from" the
plaintiffs' property, the plaintiffs correctly note in their
reply brief that there is no evidence in the transcript or the
exhibits that supports this finding.
8 Sawyer holds a doctorate degree in toxicology from Indiana
University School of Medicine. He is a diplomate of the
American Board of Forensic Medicine with approximately twenty-
seven years of experience in public health and forensic
toxicology.
9 Sawyer testified that "an isocyanate . . . is an extremely
toxic chemical." He added, "[H]uman toxicological studies are
extremely clear. . . . [I]socyanates induce several disease
processes when inhaled, even for a brief period of time of 15
minutes . . . [and] at levels as low as one part per billion."
Sawyer also testified that "[t]he monomer is a molecular single
molecule of isocyanate; for example, a single molecule of
hexamethylene diisocyanate. And they cannot be captured by the
filter because they are vapory. It's like humidity in air; it
goes right through the filter. The filter does not contain
carbon. It does not contain piperazine liquid, which is what is
used to capture isocyanates when you run a laboratory test. You
have to bubble the air through piperazine liquid to capture it.
That's not what's used.
"These are simply not much different than a furnace filter.
And the vapors, they have monomers, will go completely past it,
without capture. Unfortunately the monomers are the most toxic
5
not credit the testimony of the plaintiffs' expert that it would
not take five minutes for the isocyanates to reach the
plaintiffs' property, or that the isocyanates very likely would
present health risks. Auto Body offered no testimony, expert or
otherwise, on the issue whether isocyanates would reach the
plaintiffs' property and, if so, whether the isocyanates would
be rendered harmless before they reach the plaintiffs' property.
The judge noted that the plaintiffs' expert, "a well
credentialed toxicologist familiar with the dangers posed by
isocyanates, . . . shed little light on the pertinent question
as to what harmful effects the plaintiffs might suffer." The
judge determined that, although "Sawyer stated that anyone
directly breathing the fumes coming out of a painting booth
during the application of a top coat may be harmed unless
wearing a respirator[, he] offered little credible insight as to
form of isocyanates because the monomers are inhaled into the
deep lung . . . and do their damage. And unfortunately, these
filters have no capacity whatsoever to capture monomers. And
that's basically the science between the filters."
Sawyer opined that although the filters will trap ninety-
eight percent of the particulate, no filter can filter out the
monomers, the most dangerous isocyanates; that even with best
practices, siting is important; and that the paint booth simply
should not be close to schools or residences without a risk
assessment having been performed. Using what he described as
Environmental Protection Agency standards, Sawyer opined that
during the spray process, about 11,000 cubic feet of air is
discharged from the exhaust system per minute and that each
cubic meter of such exhaust would contain six hundred parts per
billion of isocyanates.
6
how such fumes disperse and travel once ejected into the open
atmosphere; that being outside his area of expertise."10
The judge took judicial notice of State and Federal
regulations, see infra, and noted that "[t]he potential harmful
effect of auto body paint fumes is well known and thus the
industry must meet [F]ederal [Environmental Protection Agency
10Sawyer testified that studies are extremely clear;
isocyanates induce several disease processes when inhaled even
for a brief period of fifteen minutes, including reactive airway
dysfunction syndrome, occupational asthma, exacerbation of
underlying asthma, and other pulmonary diseases. Persons of all
ages who suffer from asthma and children are particularly
vulnerable to the toxicity of isocyanates. While Sawyer
stressed the need for a health risk assessment, he did opine
that isocyanate exposure presents a "clear health threat" to
persons playing or gardening within an area close enough that
the chemical has not degraded. He stated: "I can say this:
that because there's such a huge concentration gradient, and the
air, actually, going out, . . . has enough fluid, it actually
exceeds occupational health standards. And being in such short
proximity, that will not be a sufficient distance for the
airborne monomers, the isocyanate monomers to degrade, . . .
point A to B, in this case, it's going to occur very quickly.
It's not going to take five minutes for that air to impact the
receptor." Even if only five percent of the painting performed
has isocyanates, Sawyer testified that "[d]uring that five
percent window, that's going to be more than 15 minutes of work
. . . there's going to be periods in which high levels of
isocyanates are coming out. And if you happen to be impacted at
that time for 15 minutes, there's going to be some health
effects." Sawyer further testified that what actually comes out
of the vent will contain isocyanate "about 30,000 times" above
the Massachusetts ambient air level guideline. In addition,
Sawyer testified that in this case, "where emissions are
discharged at such a huge level above [the ambient air level
guidelines], . . . I would be amazed if a health risk assessment
found no risk. I very, very much doubt that would be the case."
7
(EPA)] and [S]tate [Department of Environmental Protection
(DEP)] standards." The judge asked the plaintiffs' expert
whether State and Federal regulations are sufficient to protect
the plaintiffs. The expert responded that they were not. He
stated, "No. And neither is that [true] in EPA's opinion. If
you actually look at the automotive finishing industry
toxicology profile, the problem they point out is that the
isocyanates . . . are not captured in the filter. The monomers
. . . go through. And . . . that's the problem."
In concluding that the special permit was properly granted,
the judge reasoned that (1) isocyanates, though dangerous, are
widely used in industry "without detriment to health and safety
so long as appropriate precautions incorporated in the [Federal
and State] regulations are followed," (2) "[t]here are no EPA or
DEP regulations as to the required distance between a paint
booth exhaust pipe and residential structures," (3) Auto Body's
"Hyannis facility is in a mixed use area with homes adjacent to
the facility and no history of harmful effects despite [Auto
Body's] use at that site of both topcoat and undercoat paints
containing isocyanates," (4) in this case the fumes would be
vented from a location "from the north end of the shop, further
away from the [plaintiffs'] homes," and (5) neither Federal nor
State environmental regulations require an air modeling study,
as recommended by Sawyer, before permitting an auto body
8
painting facility, and it is "prudent to rely on the regulatory
process governing auto repair shops (both EPA and DEP)[11] to
ensure [Auto Body's] shop will not significantly decrease air
quality and thus will not adversely [affect] public health.
This court hastens to add that [Auto Body's] embrace of the
industry's best practices further supports this conclusion."
The judge added that the "plaintiffs purchased homes adjacent to
an active, growing industrial area" and "[s]ignificant adverse
impact must be seen through that lens, which compels the answer
that there is none."
Discussion. 1. Timeliness of the appeal. As an initial
matter, Auto Body contends that the plaintiffs' appeal is
untimely. Judgment entered on December 13, 2017. Within ten
days, on December 20, 2017, the plaintiffs filed a notice of
intent to file a motion to alter the judgment. See Rule 9E of
the Rules of the Superior Court (2004). Thereafter, the
plaintiffs filed a motion to amend the judgment, together with
an affidavit of no opposition, on January 5, 2018. Auto Body
does not contend that the motion to amend was not served within
ten days, as required by Mass. R. A. P. 4 (a), as appearing in
481 Mass. 1606 (2019). The motion is not contained in the
11The judge took judicial notice of 310 Code Mass. Regs.
§ 7.03(16) (2011), 310 Code Mass. Regs. § 7.12 (2001), and 40
C.F.R. §§ 63.11169 et seq. (2014).
9
record appendix, and thus we cannot ascertain the basis or bases
of the motion and the exact rule under which the plaintiffs
proceeded. The result of the motion, however, was that the
judgment was amended to remove the award of costs. A corrected
judgment entered on January 11, 2018. On February 6, 2018, the
plaintiffs filed their notice of appeal.
Without citation to authority, Auto Body contends that
because the motion to amend did not pertain to the issues the
plaintiffs pursue on appeal, they should have filed a notice of
appeal within thirty days of the original December 13, 2017
judgment. Nothing in rule 4 (a) requires piecemeal notices of
appeal. Rather, rule 4 (a) expressly provides that when a
timely motion to alter or to amend a judgment under Mass. R.
Civ. P. 59, 365 Mass. 827 (1974), or Mass. R. Civ. P. 60, 365
Mass. 828 (1974), is served within ten days after entry of
judgment, a notice of appeal must be filed within the prescribed
time measured from the entry of the order disposing of the
motion. Indeed, any previously filed notice of appeal is
without effect. We conclude, therefore, that the plaintiffs'
notice of appeal was timely. Contrast Franchi Mgt. Co. v.
Flaherty, 93 Mass. App. Ct. 418, 422-424 (2018) (sua sponte
correction of clerical error does not restart thirty-day time
period to file notice of appeal; nor did party's subsequent
motion to correct additional clerical error, filed some 750 days
10
after original judgment entered, restart thirty-day time period
where appeal did not relate to correction in amended judgment).
2. Nature of a special permit. "Special permit procedures
have long been used to bring flexibility to the fairly rigid use
classifications of Euclidean zoning schemes . . . by providing
for specific uses which are deemed necessary or desirable but
which are not allowed as of right because of their potential for
incompatibility with the characteristics of the district."
SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101,
109 (1984). "Uses most commonly subjected to special permit
requirements are those regarded as troublesome (but often needed
somewhere in the municipality, for example, gasoline service
stations, parking lots, and automobile repair garages) . . . ;
and uses often considered desirable but which would be
incompatible in a particular district unless conditioned in a
manner which makes them suitable to a given location (for
example, an apartment house in a single family residential
district)." Id.In the case of the town, special permits are governed by
art. VI, § 174-24(C)(2), of the bylaw, which provides in
relevant part that "[a] Special Permit may be issued only
following the procedures specified by the General Laws and may
be approved only if it is determined that the proposed use or
development is consistent with applicable [S]tate and town
11
regulations, statutes, bylaws and plans, will not adversely
affect public health or safety, will not cause excessive demand
on community facilities, will not significantly decrease surface
or groundwater quality or air quality, [and] will not have a
significant adverse impact on . . . neighboring properties."
3. Standard of review. A judge's review of the decision
by a local zoning board of appeals under G. L. c. 40A, § 17,
consists of both independent fact finding and deference to the
judgment of local officials. As the Supreme Judicial Court has
stated:
"The trial judge makes his own findings of facts and need
not give weight to those the board has found. The judge
then determines the content and meaning of statutes and by-
laws and . . . decides whether the board has chosen from
those sources the proper criteria and standards to use in
deciding to grant or to deny the variance or special permit
application. . . . We accord deference to a local board's
reasonable interpretation of its own zoning bylaw, with the
caveat that an incorrect interpretation of a statute . . .
is not entitled to deference.
"After determining the facts and clarifying the
appropriate legal standards, the judge determines whether
the board has applied those standards in an unreasonable,
whimsical, capricious or arbitrary manner. . . . The board
is entitled to deny a permit even if the facts found by the
court would support its issuance. The judge nonetheless
should overturn a board's decision when no rational view of
the facts the court has found supports the board's
conclusion." (Quotations and citations omitted.)
Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,
461 Mass. 469, 474-475 (2012) (Shirley Wayside). See MacGibbon
v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970);
12
Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676,
679 (1953); Davis v. Zoning Bd. of Appeal of Chatham, 52 Mass.
App. Ct. 349, 356 (2001). "On appellate review, the judge's
findings of fact will not be set aside unless they are clearly
erroneous or there is no evidence to support them. We review
the judge's determinations of law, including interpretations of
zoning bylaws, de novo." (Quotations and citations omitted.)
Shirley Wayside, supra at 475. If the board's decision is
supported by the facts found by the judge, it "may be disturbed
only if it is based on a legally untenable ground, or is
unreasonable, whimsical, capricious or arbitrary." Bateman v.
Board of Appeals of Georgetown, 56 Mass. App. Ct. 236, 242
(2002), citing ACW Realty Mgt., Inc. v. Planning Bd. of
Westfield, 40 Mass. App. Ct. 242, 246 (1996).
4. Allocation of the burden of proof. To ensure that
judicial review proceeds in a manner that is consistent with
G. L. c. 40A, § 17, it is essential that the judge correctly
allocate the burden of proof. On appeal to the Superior Court
from a decision granting a special permit, the burden of proof
is upon the applicant seeking the special permit and the board
granting the special permit to submit evidence to demonstrate
that the statutory prerequisites for the granting of a special
permit have been met, and that the special permit was properly
issued. See Kirkwood v. Board of Appeals of Rockport, 17 Mass.
13App. Ct. 423, 427 (1984). This burden encompasses the burden of
production as well. "[T]he burden of going forward with
evidence rests on the party seeking to establish the validity of
a variance or a special permit" and "the ultimate burden of
persuasion rest[s] upon the owner of the locus." Knott v.
Zoning Bd. of Appeals of Natick, 12 Mass. App. Ct. 1002, 1004
(1981).
As noted above, § 174-24(C)(2) of the bylaw provides that a
special permit may be issued "only . . . if it is determined
that the proposed use or development is consistent with
applicable [S]tate and town regulations, statutes, bylaws, and
plans, will not adversely affect public health or safety, . . .
[and] will not significantly decrease . . . air quality." It is
significant that the town has chosen not to declare that the
standards relating to "public health or safety" and "air
quality" that an applicant must meet in order to qualify for
issuance of a special permit are satisfied by compliance with
State and Federal environmental laws and regulations.12
Under the bylaw, it was Auto Body's burden to prove that
the special permit use will not significantly decrease the air
quality or have a significant adverse impact on neighboring
properties. See GPH Cohasset, LLC v. Trustees of Reservations,
12The question whether the bylaw is preempted by State law
was not raised below, and we express no opinion on the matter.
14
85 Mass. App. Ct. 555, 558 (2014) (applicant's duty to prove
entitlement to special permit); Stivaletta v. Zoning Bd. of
Appeals of Medfield, 12 Mass. App. Ct. 994, 994 (1981) (burden
on party seeking special permit to prove, pursuant to local
bylaw, that proposed use would not endanger health and safety of
district's residents or other land within district). See also
Dowd v. Board of Appeals of Dover, 5 Mass. App. Ct. 148, 154-155
(1977).
There have been cases where an unfortunate turn of phrase
suggested that the judge shifted the burden to the party
opposing zoning relief but such error has been found harmless
where a review of the entire record indicates that the judge
considered all the evidence carefully and recognized that the
ultimate burden of persuasion rested upon the owner of the
locus. See, e.g., Tebo v. Board of Appeals of Shrewsbury, 22
Mass. App. Ct. 618, 626 (1986); Knott, 12 Mass. App. Ct. at
1004. This is not such a case.
Because the judge found as a fact that the operation of
Auto Body's paint shop would result in the release into the
atmosphere of harmful molecules that for up to five minutes
following their release pose a danger to people who are exposed
to them, Auto Body had the burden to produce evidence and to
persuade the judge that those molecules, i.e., the monomers of
isocyanates that will escape from Auto Body's filtration system
15
and reach the plaintiffs' property, "will not adversely affect
public health or safety . . . [and] will not significantly
decrease . . . air quality." The judge did not make such a
finding, and on the record before us, there is no evidence that
would support such a finding.13 The judge's statement that
"[w]ithout affirmative evidence of a significant decrease in air
quality, [he found that] it [is] prudent to rely on the
regulatory process governing auto repair shops (both EPA and
DEP) to ensure [Auto Body's] shop will not significantly
decrease air quality and thus will not adversely [affect] public
health," effectively shifted the burden of proof to the
plaintiffs to prove that there would be a significant decrease
in air quality.14
13The only evidence offered by Auto Body with regard to air
quality was that (i) it would use the best available filtering
technology, (ii) it would comply with State and Federal
regulations, (iii) the industry is working toward eliminating
the use of isocyanates but had not yet achieved its goal, and
(iv) its current operation in the village of Hyannis has had no
complaints.
14The plaintiffs' expert's testimony that the amount of
isocyanates that would be released during the periods that top
coats are being applied would be 30,000 times in excess of the
Massachusetts ambient air level guideline was unchallenged.
Even if the judge properly rejected the plaintiffs' expert's
opinion that the isocyanates would not be degraded and would
present a health risk when they reach the plaintiffs' property,
it was Auto Body's burden to prove that the isocyanates would
not present a health risk, not the plaintiffs' burden to prove
that they would.
16
We have a further concern about the lack of specificity in
the judge's decision concerning the fact that Auto Body must
comply with State and Federal regulations. The judge found that
there are no State or Federal regulations governing the required
distance between a paint booth exhaust stack and residential
properties. The regulations relied on by the judge were not
included in the record appendix and though he took judicial
notice of several Massachusetts regulations, e.g., 310 Code
Mass. Regs. § 7.03 (2011), 310 Code Mass. Regs. § 7.12 (2001),
and 40 C.F.R. §§ 63.11169 et seq. (2014), there was little
testimony as to which subsections, if any, are applicable to the
proposed paint booth.15 The mere fact that there is a
requirement that records be kept regarding the amount of paint
product containing isocyanates that is used during a given time
period is not sufficient to establish that the use of
isocyanates "will not adversely affect public health or safety
. . . [and] will not significantly decrease . . . air quality."
We recognize that at least in the realm of comprehensive
permits issued pursuant to the Comprehensive Permit Act, G. L.
c. 40B, §§ 20-23, we have suggested that it would be
15Auto Body pointed to requirements that the operator of a
paint booth register its operations with and report to the DEP a
description of the facility, equipment, hours of operation,
schedule, raw materials, fuels used, and construction or
alterations of the facility, and keep other records on site.
17
unreasonable to deny a plan that could be approved conditioned
upon submission, for example, of a waste disposal system plan
that would comply with State standards. See, e.g., Zoning Bd.
of Appeals of Holliston v. Housing Appeals Comm., 80 Mass. App.
Ct. 406, 416-418 & n.9 (2011). Even in c. 40B appeals, however,
"[c]ompliance with State standards . . . is not necessarily the
end of the inquiry." Reynolds v. Zoning Bd. of Appeals of Stow,
88 Mass. App. Ct. 339, 348 (2015). The local board may justify
denying a comprehensive permit by identifying a health concern
that, among other things, is not adequately addressed by
compliance with State standards. Id. Here, given the judge's
finding and acknowledgement of "the known [hazards] of
isocyanates," there simply has been no showing that compliance
with State and Federal standards is sufficient to ensure an
absence of airborne health risks to the plaintiffs.
Accordingly, where Auto Body presented no evidence as to the
effects on neighboring properties, it is unclear which
subsections of 310 Code. Mass. Regs. § 7.03 (2001) and 40 C.F.R.
§§ 63.11169 et seq. (2014) Auto Body and the judge even relied
on, and it has not been shown that compliance with the
regulations is sufficient to ensure that the emissions from the
paint booth will not adversely affect public health or safety,
we conclude that the board's determination, as well as the
judge's determination, that Auto Body met the requirements for
18
issuance of a special permit under the bylaw is not supported by
the evidence and is based on a legally untenable ground.
To the extent Auto Body argues that the condition that the
paint booth vent at the farthest point from the plaintiffs'
property satisfies their concerns, the health agent of the
town's board of health admitted at trial that the decision to
relocate the venting was based only on his surmise that it would
help dissipate exhaust from the paint booth, and was not based
on expert opinion or guidance from a "standard." The minutes of
a board of health meeting indicate that Auto Body discussed
either installing an exhaust fan with tubing to discharge the
spray to the other side of the building away from the
plaintiffs' property, or scheduling air quality samples to be
taken to test the exhaust for volatile organic compounds. No
further details of the discussion are in the minutes. The board
of health voted to recommend venting the paint booth from the
northern side of the building, away from residential properties.
There is no evidence that positioning the vent farther away from
the residences eliminates the plaintiffs' health concerns. No
air quality samples are planned even though had the paint booth
vented vertically, the board "was interested in actually seeing
. . . the concentration in the exhaust." Indeed, the health
agent testified that the board of health was informed that all
of the paints were water based and that this fact was important
19
to its members. The judge commented that the health agent's
testimony gave him pause but that he (the judge) was persuaded
that the board "was correctly informed that only the majority of
paint products will be water based."16
Finally, the judge suggested that the result he reached was
supported at least in part by the fact that the industrial area
was created before the plaintiffs' neighborhood, and the
plaintiffs were aware they purchased homes adjacent to "an
active, growing industrial area." Even putting aside the
plaintiffs' assertion that nothing in the record suggested the
locus was in an active, growing industrial area when they
purchased their homes, the judge cites to no authority and
nothing in the bylaw that suggests that the plaintiffs'
assertions of significant adverse impact due to the discharge of
isocyanates must be viewed through the lens of purchasing
property adjacent to an industrial area. If for no other
reason, the concept of "coming to a nuisance" is inapplicable
because the plaintiffs are not pursuing a nuisance claim.
Amaral v. Cuppels, 64 Mass. App. Ct. 85, 90 (2005). And while,
16Our review of the record reveals that although the board
decision does indicate that the majority of the paint would be
water based, there was no discussion of what chemicals might be
in the nonwater-based paint or at what concentration harmful
products might be released with the paint booth exhaust.
Nothing in the submissions to the board or in the board's
decision reflects that the rest of the paint would contain
isocyanates or other harmful chemicals.
20
perhaps, a purchaser of property adjacent to an industrial area
might be expected to anticipate a certain amount of noise or
even nontoxic odors, the judge cites to nothing that suggests
that any neighbor, whether in an industrial or a residential
area, must tolerate a certain amount of exposure to toxic
chemicals released into the air.
Conclusion. For the above reasons, we vacate the judgment
of the Superior Court and order a new judgment to enter
annulling the decision of the board to allow Auto Body's special
permit application.
So ordered.