Appeals Court reverses special permit for auto body shop.

Byline: Eric T. Berkman

A special permit for an auto body shop should not have been issued without the applicant proving that the shop would not decrease safety and air quality for neighbors, the Appeals Court has determined.

The Mashpee Zoning Board of Appeals granted a special permit allowing defendant Accident Auto Body to build a shop with a paint spray booth in an area of the town's industrial zoning district abutting residential property.

Superior Court Judge Gary A. Nickerson affirmed on appeal, noting that the shop's proposed use complied with state and federal environmental regulations. The judge also found that while the plaintiff abutters presented evidence that the paint spray contained toxic chemicals, they did not prove the paint exhaust would actually pose a health risk to the plaintiffs.

But the Appeals Court reversed, finding that the judge wrongly put the burden of proof on the project opponents rather than on the applicant.

"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 and reach the plaintiffs' property, 'will not adversely affect public health or safety [and] will not significantly decrease air quality,'" Judge Peter W. Agnes Jr. wrote for the court.

"[G]iven 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," he continued.

The 20-page decision is Fish, et al. v. Accidental Auto Body, Inc., et al., Lawyers Weekly No. 11-061-19. The full text of the ruling can be found here.

'Clarifying the burden'

Christopher G. Senie of Brewster, who represented the plaintiffs, said the decision clarifies who has the burden of proof when an abutter claims that a grant of a special permit threatens a right protected by the town's bylaw.

"The case law was clearer in the case of a variance, where a number of decisions state that the holder of a granted variance has the burden," Senie said. "The cases have been a little less clear on granted special permits, and I think the...