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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.
                                                                 13


App. 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.
