Does compliance with environmental regulations suffice to prove that an operation is safe? Maybe not, for purposes of land use approvals in Massachusetts.

Last week, the Massachusetts Appeals Court decided Fish v. Accidental Autobody, Inc., No. 18-P-345 (Mass. App. Ct. May 24, 2019), an appeal from the grant of a “special permit” for an autobody shop with a paint spray booth in Hyannis. The top coats of the paint would contain isocyanates, toxic chemicals. Some proportion of the isocyanates would escape the filter system on the spray booth’s exhaust and remain toxic for a time. The proposed operation would comply with regulations of the Massachusetts Department of Environmental Protection and of the U.S. Environmental Protection Agency, but none of those rules specify a set-back of the spray booth’s exhaust from neighboring property.

A neighbor challenged the “special permit.” A special permit is a site-specific land-use approval issued, in this case, only upon a showing that the use “will not adversely affect public health or safety . . . [and] will not significantly decrease . . . air quality.” The neighbor provided evidence of the toxicity of the isocyanates, but not their fate or transport from the exhaust to the property line. Accordingly, the lower court which heard the first appeal from the grant of the special permit affirmed the permit.

The Appeals Court reversed. The burden of proof under the language of the land use by-laws placed the burden of proving the absence of an impact on the applicant for the use. It too had no fate and transport expert. And, significantly, mere compliance with environmental regulations did not suffice.

This case is also interesting because it turns on the allocation of the burden of proof – both the burden of production and of persuasion. The applicant apparently sought to prove the safety of its proposed use by showing compliance with environmental regulations. The neighbor’s expert testified that compliance did not demonstrate safety. The court did not opine on whether a contrary opinion from the applicant would have sufficed to meet its burden or what else would have counted as proof of the negative (viz., that the use “will not significantly decrease . . . air quality).