John Adams Courthouse in Boston, home to the Appeals and Supreme Judicial Courts (WMassP&I)

BOSTON—Appearing before a state appellate court in the latest episode of the long-running battle over a power plant in Springfield, opponents and advocates jousted over a lower court’s 2014 ruling that had suddenly reversed the developer’s losing streak to build the biomass-fueled facility.

What started with the Springfield City Council overturning a special permit for the plant on Page Boulevard has reached what could be only the first of many appellate court battles over biomass. At issue was whether the developer, Palmer Renewable Energy, needed a City Council-granted special permit to begin construction or if the city’s zoning ordinance allowed the construction without on.

Facing a three judge panel from the 25-member Massachusetts Appeals Court, attorneys Joseph Berman on behalf of appellants and Thomas Mackie, PRE’s lead attorney, largely argued over statutory construction and the definition of waste.

Last August Land Court judge Alexander Sands reinstated PRE’s building permit reversing the city’s Zoning Board of Appeals, which found city zoning law required a special permit. The ZBA said PRE would utilize commercial “incineration. Sands found otherwise obviating the need for a special permit.

Michaelann Bewsee (via Michaelann Land blog)

The ZBA petitions were filed by Michaelann Bewsee, two neighbors of the proposed plant and the City Council in its capacity as the ordinance’s author. Following Sands ruling, Bewsee and the Council appealed, formally represented by Berman and Attorney Patrick Markey respectively Monday.

Bewsee attended Monday’s argument along with at-large Council candidate Jesse Lederman and Conservation Law Foundation attorney Jennifer Rushlow, both whom were active in the biomass battle. Ostensibly, no member of the Callahan family, the investors behind PRE, attended.

The tenor of oral arguments did not reveal much about how justices Diana Maldonado, Gregory Massing and Mary Sullivan would rule. There were more questions for Berman, but not necessarily ones of an incredulous nature. Mackie, holstering the attitude he had shown before the Council and ZBA, faced fewer, but more granular interrogatories.

Attorney Joseph Berman (via themediationgroup.org)

Each side received fifteen minutes with no rebuttal time allowed. Berman spoke for both appellants followed by Mackie on PRE’s behalf.

In court filings, Berman and Markey focused on statutory construction, namely the meaning of “incineration,” as isolated from other text in the zoning ordinance. There was some back and forth about “the rule of the last antecedent,” but after the justices understood Berman’s point, they shifted away from that subject.

Instead the justices moved toward the definition of “waste.” In his brief Mackie had argued that the “green wood chips” PRE planned to use, derived from leftovers of forestry and landscaping activities, were not waste because they were marketable.

“The fact that it may have economic value does not mean it not waste,” Berman countered during oral arguments.

In their briefs, both Berman and Mackie discussed poisonous gases, but during arguments the point seemed ancillary. The zoning ordinance requires a special permit for emission of poisonous gases, but Sands had ruled only such gases reaching a dangerous concentration under state and federal air regulation should apply. Berman countered that the ordinance does not have such a trigger.

The gas discussions was less about it triggering a permit itself and more as support for appellants’ underlying argument that courts should defer to the local zoning board of appeals. Berman argued that as the entity on the ground, it was best equipped to interpret the impact on the community, noting Springfield’s high incidence of asthma and other respiratory diseases.

Attorney Thomas Mackie (via ebcne.org)

Even as the argument moved away from “incineration,” it reappeared during the argument. Mackie argued that the city had long tolerated “incineration” and never enforced its zoning ordinance—the part referring to incineration dates to the 1920’s—against such burning before. In his brief, however, Mackie provided almost no precedent explaining how the city’s inaction affected the current case.

One notable interaction between Mackie and Justice Maldonado came on the relationship between incineration and waste. Mackie argued that appellants had insufficiently defined incineration, omitting, under one definition, “especially waste.” Mackie argued this should be read as “exclusively waste.”

Justice Maldonado pushed back. “Especially and exclusively are not the same.”

Mackie had also made note of the ZBA’s decision to not appeal the Land Court ruling (this was at least partly due to Springfield Mayor Domenic Sarno’s announcement that he would not pay for counsel on appeal). When Justice Sullivan asked Mackie about the standing of the interveners—Bewsee and the City Council—Mackie ignored the question.

The Springfield Zoning Board of Appeals in 2012. (WMassP&I)

The Appeals Court’s job must determine whether the ZBA acted reasonably given the available facts as found by the Land Court. Generally speaking, incredible deference should be given to local zoning bodies except, according to precedent, where the decision is “unreasonable, whimsical, capricious or arbitrary.” PRE’s attorney argued that the process is bifurcated between a less deferential legal analysis and otherwise monumental deference to ZBAs’ application of zoning law.

Berman did not argue that the standard was unfettered deference, but he said, “reasonable minds can differ.” That Judge Sands thought differently is not only insufficient, but suggests enough vagueness exists to leave the decision in the ZBA’s hands.  Even PRE’s was once of a different mind. Justice Massing asked Berman to confirm that PRE had in fact sought a special permit prior to changing its fuel source from construction refuse to wood chips.

Mackie did not dispute or otherwise differentiate this point during his time, although he did rattle off cases that affirmed the right to overturn ZBA’s, including one from February. However, that case, Drummey v. Town of Falmouth, did little than restate the standard of review about which appellants and PRE agreed.

Inside the John Adams Courthouse (WMassP&I)

A decision is expected within 90 days after which either party could appeal to the Supreme Judicial Court. Should Bewsee and the Council prevail, the battle is probably not over. A case remains pending before Land Court over the validity of the Council’s 2011 revocation of the special permit. Bewsee herself also has an appeal pending against PRE’s air quality permit.

The case argued Monday is Palmer Renewable Energy vs. Bewsee, 2014-P-1630.