Sunday, January 22, 2012

The Right of Appeal: A Preview...

**This post has been updated to reflect clarifications of some legal issues in this appeal.**

Biomass Protesters at Revocation Hearing last year
This Wednesday Springfield will see perhaps the highest profile showdown over the proposed biomass facility on Page Boulevard since the Springfield City Council revoked Palmer Renewable Paving's permit.  Indeed, this may be more of a nail biter as most of the 2/3 of the council that voted to revoke had telegraphed for weeks that the PRE's project and its changes made it ripe for revocation.  Wednesday, however, will be something different.  For the first time an independent body will assess the council's decision to revoke PRE's permit.  This is very different from the permit granting process PRE faces before the Department of Environmental Protection, where the issue is not the validity of the revocation or Building Commissioner Steven Desilets's permit, but one of air quality.

The Zoning Board of Appeals is a body chartered under Massachusetts General Law to resolve zoning disputes within cities and towns.  The matters before it and indeed the people before it are dictated, however, by the city's zoning ordinances.  In that way, the mere fact that the council, who is not the only party opposing Desilets's issuance of PRE's permit, is in part due to their own ordinance.  Under Springfield zoning, the Springfield City Council approves special permits.  While this has often led to some concern that a political, rather than professional, appointed body (which can also be political), approves these permits, it also puts the Council in the game to stop PRE's building permit.  Because, in the council's view, its will with regard to the special permit is being subverted by the building permit, they have standing to appeal.  Were they merely the writers of the zoning ordinance, they may not be an aggrieved party within the meaning of the state zoning law.  In that case, only the private appellants to the building permit could go before the appeals board and, if still dissatisfied, onto court.  The private actors consist of nearby residents and several anti-biomass groups like Arise for Social Justice and Stop Toxic Incineration.

Now that the appeal is before the zoning board, whether the appeal of citizens or of the council, the issue will boil down to three basic issues.  It seems likely, as with any appellate board, that the board could choose to consider the appeals as broadly or as narrowly as they like.  Often times, to minimize the political blowback on themselves, such boards or appellate courts will consider matters as narrowly as possible.  They do not always, however.  Consider the Citizens United decision from the US Supreme Court.

The overall argument of the appeal is that the building commissioner acted beyond his authority to issue the building permit.  It boils down to several arguments.

The first issue is whether Desilets acted in direct contravention of state law when he gave PRE their building permit.  Appellants are expected to argue this point first and foremost since it is probably the most airtight argument.  Massachusetts regulations say that before a building permit can be issued all other permits must be received first.  However, this does not turn on the special permit as its necessity is under dispute anyway.  Rather, appellants will likely point out that the commonwealth's Department of Environmental Protection has yet to issue PRE's air quality permit.  The Conservation Law Foundation and local groups had opposed PRE's receipt of that permit as well, but were uled to not have standing by a DEP hearing officer considering the case.  That hearing officer was overturned by the DEP commissioner who ordered the hearing officer to consider the matter again on the merits.  Consequently, there is no air quality permit and remains in litigation.

If the ZBA wants a clean way out, for now at least, they could rule on this alone in favor of the appellants.  It seems unlikely that either the Building Commissioner or PRE would appeal that ruling to court due to how cut and dry it is.

However, the other two issues will be presented too.  The final two are somewhat related.  Is a special permit necessary and is the facility an incinerator?  The city Law Department has issued a memo, upon which Desilets relied, that said a special permit was not necessary because the new design was not, as the original now-revoked special permit, a recycling center.  It is not using construction and demolition waste as a fuel and therefore is not a recycling center.  Consequently, no special permit is necessary.  However, the city zoning ordinance may still apply, appellants will argue.  The city requires a special permit for incinerators.  Because this facility, whatever the purpose, is burning wood chips, it is, as appellants will argue an incinerator.  The city requires a special permit for that, which PRE has never received or requested.

Largest Smoke Stack in the World (wikipedia)
These second two issues will undoubtedly reappear if the ZBA chooses to only reverse building permit on Wednesday on the narrowest grounds.  Indeed, they will likely reappear before the ZBA, unless the board sides with the building commissioner on the air permit.  If the board decides to rule beyond PRE's lack of an air permit, then there will almost certainly be an appeal regardless of who wins on the other grounds.  If the ZBA rules in favor of the building commission the citizens groups and the council will appeal.  Biomass opponents on the council still have more than enough votes to appeal to court.  That raises significant questions about the council's ability to represent itself because they cannot appropriate money, but none of the biomass opponents seem particularly worried about that.

The ZBA will have up to ninety days from the date of appeal (December 7, 2011) to make their decision.  An affirmative vote is required.  As an appeal is likely, the losers will have 20 days to appeal to court.  If the council is on the losing end, it will likely need a special meeting to vote to appeal to court in enough time and survive a Rule 20 invocation.

If the council and the citizens groups win, then it may get more interesting.  Who will appeal in that case?  PRE has standing to appeal to superior court, but the defendant, if they sue, will no longer be the city council, but the ZBA.  This could tidy up some of the legal wrangling as the Law Department would no longer be conflicted by having two adverse plaintiffs (the building commissioner and the board of appeals).  However, as Ward 8 Council John Lysak noted at a meeting last year, there may already be conflicts within the law department that could disqualify them regardless.  If the Building Commissioner appeals, which in theory he could if the City Solicitor agrees to represent him, then the Law Department becomes conflicted again.  Moreover, the ZBA, as the defendant is even more unable to defend itself if the law department steps away.  However, the Council and the citizens groups could easily intervene and take control of the case in court.

This situation presents a strange legal disposition.  Intra-municipal conflicts such as this one have been rare for fifty years  Indeed, the most authoritative case law on the matter stems from the 1920s, 30, and 40s when many of the laws governing municipalities, zoning and the like were originally written.  Certainly, it is common for the controversies to arise soon after a law is passed, the lack of significant case law since suggests that these conflicts are intentionally managed away by politicians and officials.  This leaves archaic, if valid case law for a legal situation that has itself become rare.  One way or another, Wednesday, as important as it may be, is not the last stop on this legal train.

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