Opinion
18-P-1551
12-11-2019
ATTLEBORO SAND & GRAVEL CORP. v. CITY OF ATTLEBORO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Attleboro Sand & Gravel Corp. (ASG), challenges the declaratory judgment by a judge of the Land Court determining that an asphalt plant is not a permitted use in the city of Attleboro's (Attleboro's) industrial business park (IBP) district under the Attleboro zoning ordinance in effect before June 4, 2015 (ordinance). We affirm.
1. Background. In 1994, Attleboro created its IBP district, a zoning district intended to promote "environmentally-sound" industrial and business development "in a park-like setting." The site is adjacent to an area zoned for and used as residential property and, as we discuss infra, is regulated by the ordinance.
ASG has for decades operated a quarry, a stone processing plant, and a ready-mix concrete plant on a site in Attleboro, the majority of which became part of the IBP district upon the district's creation. In January 2013, ASG devised a plan for construction of a new asphalt plant on the site and, in 2013 and 2014, Attleboro approved its form A plan application for the new plant and issued special permits related to the plan. In September 2014, ASG filed suit under G. L. c. 240, § 14A, and G. L. c. 231A, § 1, seeking a declaration that the planned asphalt plant was permitted as of right in the IBP district. Finding that under the ordinance ASG's proposed use of the site was neither "[p]rocessing and [t]reating" raw materials nor "[l]ight [m]anufacturing," the Land Court judge ruled that ASG's proposed use was prohibited in the IBP district. ASG argues that the judge misinterpreted the ordinance.
The parties agree that the planning board of Attleboro's endorsement of the plan operated to grant ASG a three-year zoning use freeze.
To the extent that this filing reflected ASG's concern about opposition to the asphalt plant construction, that concern was well founded: the zoning board of appeals of Attleboro ultimately overturned the building commissioner's approval of a building permit for the plant.
2. Discussion. a. Standard of review. We review the interpretation of a zoning ordinance de novo, Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 567 (2014), looking to the plain language of the ordinance in order to determine the legislative intent motivating its adoption. See Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 729 (2013) ; Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012). Traditional canons of statutory construction guide our review. See Doherty, supra. Where, as here, "the meaning of the language is plain and unambiguous," we interpret the ordinance according to its plain wording, striving "to give effect ‘to all its provisions, so that no part will be inoperative or superfluous.’ " Shirley Wayside Ltd. Partnership, supra, quoting Connors v. Annino, 460 Mass. 790, 796 (2011).
b. The ordinance. The ordinance permits certain uses by right within the IBP district, including, relevant to this dispute, "Processing and Treating of Raw Materials" (hereinafter, processing and treating) and "Light Manufacturing, Assembling and/or Processing of Manufactured Products" (hereinafter, light manufacturing), and prohibits others, including "Heavy Manufacturing, Assembling and/or Processing of Manufactured Products" (hereinafter, heavy manufacturing). The ordinance defines "light manufacturing," but does not define "processing and treating." As to undefined terms and words, § 17-11.1 of the ordinance provides guidance: if not defined in the ordinance, but defined in the Massachusetts State building code (building code) "unless a contrary intention clearly appears," the words are given the meanings assigned in the building code; if not defined in either the ordinance or the building code, the words "shall have the meanings given in Webster's Unabridged Dictionary." Additionally, uses included in the ordinance's table of use regulations, § 17-3.4, "shall be further defined by the Standard Industrial Classification Manual published by the U.S. Bureau of the Census."
In 2015, Attleboro amended the ordinance to impose an express use prohibition on both concrete and asphalt plants in the IBP district. Earlier versions of the ordinance neither specifically permitted nor prohibited asphalt plants other than as they fit into one of the ordinance's defined use categories.
The ordinance also includes performance standards applicable to all permitted uses within the IBP district, addressing conditions including noise, vibration, and toxic gas emissions that adversely affect those in "the industrial park and its surrounds." The performance standards do not explicitly define any use as permitted or prohibited.
c. Processing and treating. Neither the term "processing and treating" nor its component words are defined in the building code, see 780 Code Mass. Regs. § 2.00 (2014); § 17-11.1 of the ordinance next directs us to the dictionary. ASG argues that, as an asphalt plant involves processing raw materials and treating them with liquid asphalt, the dictionary definition of "processing" mandates a determination that asphalt production is a permitted use in the IBP district. We disagree. Webster's Third New International Dictionary 1808 (2002) defines "processing" as a component of "manufactur[ing]." The ordinance, by contrast, creates separate categories for processing and treating, raw materials, and manufacturing products. Adoption of ASG's literal interpretation would eliminate any practical distinction between these separate categories, merging them under a "manufacturing" heading with the undesirable result of rendering superfluous the "processing" term included in the ordinance. See, e.g., Shirley Wayside Ltd. Partnership, 461 Mass. at 477, quoting Connors, 460 Mass. at 796 ("We ‘endeavor to interpret a statute to give effect "to all its provisions, so no part will be inoperative or superfluous" ’ "); Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967) ("[n]one of the words of a statute is to be regarded as superfluous, but each is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute"). Such an interpretation would not give the ordinance a "sensible and practical meaning." Owens v. Board of Appeals of Belmont, 11 Mass. App. Ct. 994, 995 (1981). See Selectmen of Hatfield v. Garvey, 362 Mass. 821, 826 (1973). Accordingly, as the judge did, we conclude that for the purposes of the ordinance, processing and treating is a use distinct from manufacturing. Because of these two categories, only manufacturing involves the creation of a new product, see Tilcon-Warren Quarries, Inc. v. Commissioner of Revenue, 392 Mass. 670, 673 (1984) (manufacturing transforms existing material into something new) -- which, we conclude, an asphalt plant does -- we read the ordinance to mean that operation of an asphalt plant is not a processing and treating use permitted by right in the IBP district.
Another dictionary defines "processing" as a "series of actions or operations conducing to an end [especially] a continuous operation or treatment [especially] in manufacture." Merriam-Webster's Collegiate Dictionary 990 (11th ed. 2003).
Although we reach this conclusion without consideration of the final step in the ordinance interpretive hierarchy, i.e., consideration of an industry classification manual like the Standard Industrial Classification Manual, published by the United States Bureau of the Census, or a substitute like the North American Industry Classification System Manual on which the judge relied, we agree with the judge that reference to such a classification system adds additional support to the conclusion that an asphalt plant is a manufacturing enterprise. See North American Industry Classification System Manual, sector 32412301 (2007) ("This industry [within the manufacturing sector] comprises establishments primarily engaged in [1] manufacturing asphalt and tar paving mixtures ... from purchased asphaltic materials"). Likewise, the ordinance itself defines "[l]ight [m]anufacturing" as involving the creation of "new product[s]."
d. Light manufacturing. We likewise conclude that the judge properly interpreted the plain meaning of the ordinance definition of light manufacturing to restrict the permitted activities by method (i.e., "employing only electric or other inoffensive motor power, utilizing hand labor or quiet machinery and processes"), and by limiting the permitted manufacturing to "materials" that are "free from neighborhood disturbing agents," including odors. ASG does not claim that it demonstrated that its proposed asphalt plant would rely solely on hand power, electric, or other inoffensive power sources. There is also no dispute that the plant's operation would generate both noise and odors. As ASG did not prove that its proposed plant met the strict requirement of the ordinance, it did not prove its qualification as a permitted use by right.
Even assuming, as ASG contends, that it would be obligated by Federal regulation to mitigate the impact of noise, fumes, and other incidents of the asphalt plant operation, and could do so, the ordinance limits the "light manufacturing" designation to activities that are "free from" neighborhood disturbing agents, not those that simply minimize those agents to a degree acceptable to governmental regulators or in a way that complies with the IBP performance standards generally applicable to any permitted use within the IBP district.
ASG's argument that the IBP performance and design standards, § 17-4.8 of the ordinance, "give definition to" the IBP's permitted uses, including light manufacturing, is misplaced. The performance and design standards govern all permitted uses in the IBP; they do not define any particular use.
e. Historical use and interpretation. Finally, we are not persuaded by ASG's arguments that (1) the historical use of the site to operate, among other concerns, an earlier concrete plant, demonstrates that the proposed asphalt plant was a permitted use within the IBP district as of June 4, 2015, or (2) that Attleboro was bound to its original approval of ASG's plans to add an asphalt plant to the site. The first argument fails to account for the fact of Attleboro's 1994 decision to reclassify the IBP district in light of the changing business landscape of the area. See Muto v. Springfield, 349 Mass. 479, 482 (1965) (changes in neighborhood justified zoning reclassification). The second argument overlooks the fact that, even had Attleboro initially indicated approval of ASG's plans for the proposed asphalt plant, and later changed its position, that kind of volte-face is permissible. A city is permitted to change its interpretation of its own ordinances. See Plainville Asphalt Corp. v. Plainville, 83 Mass. App. Ct. 710, 714 n.4 (2013).
We conclude that the Land Court judge correctly interpreted the ordinance to exclude asphalt production from the definitions of both "processing and treating" raw materials and "light manufacturing."
We deny Attleboro's request for appellate attorney's fees.
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Judgment affirmed.