MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 105

Docket: Yor-12-398

Argued: September 11, 2013

Decided: December 5, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and 

JABAR, JJ.

ROBERT DUFFY et al.

v.

TOWN OF BERWICK et al.

JABAR, J.

[¶1] Berwick Iron & Metal Recycling, Inc., appeals from a judgment 

entered in the Superior Court (York County, Fritzsche, J.) vacating the Berwick 

Planning Board’s decision to grant a conditional use and site plan permit that 

would allow Berwick Iron to operate a metal shredder on its property.1 Berwick 

Iron argues that the court erred in vacating the Planning Board’s judgment because 

the Board did not err in applying the ordinance governing air emissions. Robert 

Duffy and other neighboring landowners who oppose the permit cross-appeal, 

arguing that the court erred in concluding that the Planning Board did not violate 

the abutters’ due process rights by communicating ex parte with representatives 

 1

 Although the Town of Berwick filed an appellant’s blue brief and argued to vacate the Superior 

Court’s judgment, it did not file a notice of appeal. “Any party seeking to modify a judgment must file a 

notice of appeal to have its arguments properly considered.” Wister v. Town of Mount Desert, 

2009 ME 66, ¶ 1 n.1, 974 A.2d 903; see also M.R. App. P. 2.
2

from Berwick Iron and in applying the provision in its ordinance pertaining to 

noise. We conclude that despite the Planning Board’s ex parte communications 

with Berwick Iron, it did not violate the due process rights of the abutters or err in 

applying its ordinance, and thus, we vacate the court’s judgment and remand for 

entry of a judgment affirming the Planning Board’s decision.

I. BACKGROUND

[¶2] Berwick Iron operates a metal and automobile recycling business in a 

rural commercial and industrial district in Berwick. The facility has been operating 

under an existing conditional use permit for automobile recycling. See Berwick, 

Me., Land Use Ordinance § 6.2 (Nov. 2, 2010) (providing that automobile 

recycling requires a conditional use permit). On September 9, 2010, Berwick Iron 

applied for a conditional use permit to install and operate a metal shredder for 

vehicles that it currently processes with front-end loaders and metal shears.

[¶3] The metal shredder processes vehicles that have been flattened and 

drained of all fluids before arriving onsite. The vehicles travel along a conveyor 

belt through the shredder, and the shredded metals are then separated into two piles 

of ferrous (containing iron) and nonferrous metals, loaded onto purchasers’ trucks, 

and transported offsite. The shredder is powered by a 3,600 horsepower diesel 

engine, commonly used on cruise ships, which is encased by concrete walls to 
3

muffle noise. A 45-foot stack protrudes from the top of the engine encasement, 

through which the engine emits diesel exhaust.

[¶4] In support of its permit application, Berwick Iron initially submitted to 

the Planning Board a noise study, reporting that, based on measurements taken at a 

similar facility in Connecticut, the anticipated noise levels would meet ordinance 

requirements. Berwick Iron also provided a copy of the air emissions license 

granted to it by the Department of Environmental Protection. An attorney 

representing nine abutting landowners who opposed the permit presented concerns 

about the metal shredder to the Board. The abutting landowners cited concerns 

chiefly about harmful air emissions, noise produced by the shredder and the 

engine, and the toxic waste product generated by automobile recycling plant—

known as shredder residue or “fluff,”

[¶5] The Board considered Berwick Iron’s application in an informational 

meeting on September 16, 2010, and in two public hearings on October 7, 2010, 

and February 17, 2011. During its consideration of Berwick Iron’s application, the 

Planning Board also held two site walks without inviting members of the public.

2

The first nonpublic site walk, held on September 25, 2010, was scheduled for 

members of the Board, and members of the public were neither specifically invited

 2

 Additionally, two members elected to the Planning Board in the fall of 2010 attended a private site 

walk with the facility’s owners on October 5, 2010.
4

nor excluded. During a public meeting on January 6, 2011, the Board scheduled a

second site walk to take place on January 8, 2011, and the Board chairperson asked 

the owner of Berwick Iron “What is your pleasure about having it open to the 

public?” The owner responded, “[W]e are better off just having the Planning 

Board come in,” and the members of the Planning Board agreed. After scheduling 

a time for the site walk, Berwick Iron’s owner interjected and offered to “invit[e]” 

the attorney for the abutting landowners, “if [he] would like to come,” but the

attorney for the abutters declined.

[¶6] On February 3, 2011, the Board adjourned its regular public meeting to 

hold a “workshop session” regarding Berwick Iron’s pending application, without 

giving the opportunity for public comment. The Board indicated that it received 

input from the attorney for the abutting landowners and from representatives of 

Berwick Iron during the session, but it is unclear whether the session was closed to 

the public because the Board did not record this session. Additionally, Board

members sent and received several emails from representatives of Berwick Iron 

regarding Berwick Iron’s pending application, and the Board did not send copies of 

the emails to the abutters and did not notify the public or the abutters about the 

emails. On March 3, 2011, the Board unanimously voted to approve the 

conditional use permit and issued a written decision on March 17, 2011.
5

[¶7] The abutters sought review of the Board’s decision in the Superior 

Court. See 5 M.R.S.§ 11001 (2012); M.R. Civ. P. 80B. The court vacated the 

Board’s decision, citing violations of the abutter’s due process rights in the 

nonpublic site walks, meetings, and email correspondence. The court noted that 

the Board’s process “suggest[ed] a lack of respect for and fair treatment of the 

[abutters] by the Board,” and that “the [abutters] did not receive the fair and 

unbiased hearing that they were entitled to.” The court also concluded that the 

Board erred in applying the air emissions standard in the ordinance.

[¶8] On remand, the Board held a site walk that was open to the public on 

November 5, and two public hearings on November 17 and December 1, 2011. 

Both Berwick Iron and the abutting landowners provided the Board with the 

opinions of sound engineers that differed on whether the project would meet 

ordinance sound requirements. In response to the differing opinions, the Board 

scheduled a live sound test of the shredder to allow both the abutters’ and Berwick 

Iron’s sound engineers to take decibel measurements.

[¶9] Additionally, on October 6, 2011, Berwick Iron provided a study that 

analyzed the project’s potential air emissions and concluded that “the results of the 

analysis demonstrate that the project conforms with the Town of Berwick’s 

[ordinance].” The abutting landowners also provided a written opinion of an
6

emissions expert, criticizing the conclusions made in the air emissions study

provided by Berwick Iron.

[¶10] Presented with the conflicting air emissions studies from Berwick 

Iron and the abutters, the Board decided to hire an environmental consulting firm 

to conduct an independent review of both studies. Because Berwick Iron was 

required to pay the costs of the town’s independent review expert, before hiring its 

peer reviewer, the Board solicited estimates from three engineering firms and 

compared prices. The Town Planning Coordinator then contacted the attorney 

representing Berwick Iron, attaching the three proposals, with the following email: 

Jon St. Pierre[, the Town engineer,] gave me the names of 

several engineering firms and the three I contacted were Sevee & 

Maher (SME), Tetra Tech and MacMillian [sic] & Donnelly. 

MacMillan & Donnelly came in with the lowest estimate at $1,500, 

Tetra Tech at $3200 and SME[’s] estimate was $5,700. I have 

attached the three proposals for your review. 

Please review them and let me know if you agree that I should 

contact MacMillan & Donnelly and instruct them to proceed with the 

peer review.

Berwick Iron’s attorney later responded with another email stating, “Yes, it’s fine 

with us if you instruct MacMillan & Donnelly to proceed with the peer review.” 

Neither the Planning Coordinator nor the Board informed the public or the attorney 

for the abutting landowners about this exchange.
7

[¶11] After the Board received the results of the sound study and evidence 

from the independent reviewer on the air emissions study, it voted again to approve 

the conditional use permit. The Board issued its written decision on 

January 5, 2012, and the abutters sought review in the Superior Court. The court 

vacated the Board’s judgment a second time, concluding that when the Board 

sought approval of its choice of independent reviewers from Berwick Iron, without 

notifying the public or the abutters’ counsel, it violated the abutters’ due process 

rights. Additionally, the court found that the Board again erred in applying its air 

emissions ordinance by relying in part on state and federal standards.

[¶12] In a written decision on August 3, 2012, the court remanded the case 

to the Board to determine whether the facility met the more stringent ordinance 

standard for air emissions. Berwick Iron timely appealed the court’s judgment to 

this Court, see 5 M.R.S. § 11008(1) (2012); see also M.R. App. P. 2(b)(3), and 

filed a post-judgment motion requesting that the Superior Court clarify its 

judgment, see M.R. Civ. P. 59(e). The Superior Court amended its judgment, 

stating, “While the Board did violate due process, that violation did not influence 

the outcome of the case,” and “remand to correct the flawed process of choosing 

the Board’s expert would serve no purpose.” See M.R. App. P. 3(b) (permitting 

the court to issue an order on a M.R. Civ. P. 59(e) motion to alter or amend the 

court’s judgment pending appeal). Further, the court clarified its judgment
8

regarding the Board’s error in applying the air emissions standard, stating that the 

ordinance restricts even “minimal” emissions: “‘Insignificant’ emissions are 

different from no emissions. ‘Minimal’ is obviously different from ‘nonexistent.’ 

The Town enacted a very strict ordinance which was not met.” The abutters filed a 

timely notice of a cross-appeal. See 5 M.R.S. § 11008(1); see also M.R. 

App. P. 2(b)(3).

II. DISCUSSION

[¶13] “When the Superior Court acts in an appellate capacity we review

directly a local agency’s decision for abuse of discretion, errors of law, and 

findings not supported by the evidence.” Malonson v. Town of Berwick, 

2004 ME 96, ¶ 5, 853 A.2d 224. “The party seeking to overturn . . . [a] Board’s

decision[] bears the burden of persuasion.” Lane Constr. Corp. v. Town of 

Washington, 2008 ME 45, ¶ 11, 942 A.2d 1202.

A. Due Process

[¶14] The abutters argue that the Planning Board violated the abutters’ due 

process rights when the Planning Coordinator sent an email only to the attorney for 

Berwick Iron seeking approval of the Board’s selection of an independent 

reviewer, hired to assess the competing opinions of experts on air emissions.3

 3 We note that this allegation also comes after the Planning Board rendered the first decision on 

Berwick Iron’s application. The Superior Court ultimately vacated the Board’s initial decision because it 

was fraught with procedural violations. We pause to emphasize that local planning boards’ meetings, 
9

[¶15] Both an applicant and members of the public who oppose a project are 

“entitled under the [D]ue [P]rocess [C]lause of the United States and Maine 

[C]onstitutions to a fair and unbiased hearing.” Gorham v. Town of Cape 

Elizabeth, 625 A.2d 898, 902 (Me. 1993); see also U.S. Const. amend. XIV § 1;

Me. Const. art. I, § 6-A; Lane Constr. Corp., 2008 ME 45, ¶¶ 28-29, 

942 A.2d 1202 (recognizing the procedural due process rights of a project’s 

opponents before a municipal planning board). The Due Process Clause “‘protects

against the exercise of arbitrary governmental power and guarantees equal and 

impartial dispensation of law according to the settled course of judicial 

proceedings or in accordance with fundamental principles of distributive justice.’” 

Mutton Hill Estates, Inc. v. Town of Oakland, 468 A.2d 989, 993 (Me. 1983)

(quoting the trial court opinion with approval).

 records, and actions, governed by the Freedom of Access Act, must be open to the public and their 

deliberations conducted openly. 1 M.R.S. §§ 401, 402(2)(C) (2012). Only in very limited exceptions 

does the Freedom of Access Act permit proceedings to take place without public notice and the 

opportunity for public participation. See 1 M.R.S. §§ 403(1), 405 (2012) (providing for nonpublic 

deliberations conducted during executive session or “as otherwise provided by statute”).

After the Berwick Planning Board’s initial decision on Berwick Iron’s application, the Superior Court 

adeptly described the procedural issues as follows:

The [abutters’] procedural challenges [to the Board’s decision] are of great[] concern and 

suggest a lack of respect for and fair treatment of the [abutters] by the Board. Board 

members are volunteers who have assumed an often demanding and frequently thankless 

job. However, proceedings must be conducted consistent with due process such than an 

objective participant, win or lose, would conclude that he or she had been heard, that the 

result was not preordained and that the process was fair.

Because those issues were resolved after the Superior Court vacated and remanded the Planning Board’s 

first decision and are not challenged by the abutters, we address only the issue of whether the email from 

the Planning Coordinator violates the abutters’ due process rights.
10

[¶16] However, “[w]hat constitutes due process in [a planning board] 

hearing, particularly one which is not adjudicating disputes between private 

parties, but is attempting to gather facts for the review of a [permit application]

depends primarily upon the nature of the proceedings and the possible burden upon 

that proceeding.” Cunningham v. Kittery Planning Bd., 400 A.2d 1070, 1079 

(Me. 1979). This flexible concept of due process stems from the need of municipal 

bodies to play a variety of roles, akin to those of government agencies: 

[W]hen governmental agencies adjudicate or make binding 

determinations which directly affect the legal rights of individuals, it 

is imperative that those agencies use the procedures which have 

traditionally been associated with the judicial process. On the other 

hand, when governmental action does not partake of an adjudication, 

as for example, when a general fact-finding investigation is being 

conducted, it is not necessary that the full panoply of judicial 

procedures be used. . . . The nature of the alleged right involved, the 

nature of the proceeding, and the possible burden on that proceeding, 

are all considerations which must be taken into account.

Hannah v. Larche, 363 U.S. 420, 442 (1960); see also In re Me. Clean Fuels, Inc., 

310 A.2d 736, 745-48 (Me. 1973).

[¶17] In the context of municipal planning boards, we have stated that due 

process entitles a party “to a fair and unbiased hearing.” Lane Constr. Corp., 

2008 ME 45, ¶ 29, 942 A.2d 1202. For example, we concluded that because the 

public had a full and fair opportunity to comment on an application, the planning 

board proceedings satisfied due process requirements, despite the board’s request 
11

for additional comments from the applicant without providing a contemporaneous 

opportunity for public comment. Cunningham, 400 A.2d at 1078-79; see also

Anderson v. New England Herald Dev. Grp., 525 A.2d 1045, 1046 (Me. 1987). 

However, a planning-board proceeding failed to satisfy due process requirements 

where the board rendered a decision in which some members of the board 

participating in the decision had not attended the hearings and had not “heard the 

evidence and assessed the credibility of the various witnesses.” See Pelkey v. City 

of Presque Isle, 577 A.2d 341, 343 (Me. 1990).

[¶18] Communications between a decision-maker and only one party, 

without notifying the opposing party or providing that party with an opportunity to 

be heard, are ex parte communications that implicate the due process rights of the 

excluded party. See Mutton Hill Estates, Inc., 468 A.2d at 992; see also Black’s 

Law Dictionary 316 (9th ed. 2009) (defining “ex parte communication”). We will 

vacate a planning board’s decision if, as a result of these communications, the 

decision results in “procedural unfairness.” Lane Constr. Corp., 2008 ME 45, 

¶ 32, 942 A.2d 1202 (quotation marks omitted). Procedural unfairness refers to the 

idea that the ex parte communication affects “the integrity of the process and the 

fairness of the result.” Springfield Terminal Ry. Co. v. United Transp. Union, 

767 F. Supp. 333, 349 (D. Me. 1991); see also Mutton Hill Estates, Inc.,

468 A.2d at 992. For example, a planning board’s decision to exclude members of 
12

the public and the applicant during the board’s fact-finding proceedings violated 

the due process rights of those excluded. Mutton Hill Estates, Inc., 468 A.2d at 

992.

[¶19] The United States Court of Appeals for the District of Columbia 

Circuit has described the analysis of this issue as follows:

[A] number of considerations may be relevant: the gravity of the 

ex parte communications; whether the contacts may have influenced 

the . . . ultimate decision; whether the party making the improper 

contacts benefited from the . . . ultimate decision; whether the 

contents of the communications were unknown to opposing parties, 

who therefore had no opportunity to respond; and whether vacation of 

the . . . decision and remand for new proceedings would serve a useful 

purpose.

Prof’l Air Traffic Controllers Org. v. Fed. Labor Relations Auth., 685 F.2d 547, 

564-65 (D.C. Cir. 1982) (footnotes omitted); see also Springfield Terminal Ry. Co., 

767 F. Supp. at 349.

[¶20] Here, the court concluded that the email at issue did not taint the 

Board’s decision. See Lane Constr. Corp., 2008 ME 45, ¶ 32, 942 A.2d 1202. We 

agree. Although the abutters assert that Berwick Iron’s approval of MacMillan & 

Donnelly influenced the Board’s decision on whom it would hire, that assertion is 

unsupported by the evidence in the record. Rather, the email discloses that the 

Board had already made its selection and merely sought Berwick Iron’s approval

because Berwick Iron would pay for the costs of the expert. Thus, the gravity of 
13

the ex parte communication is limited. See Prof’l Air Traffic Controllers Org., 

685 F.2d at 565.

[¶21] Further, although Berwick Iron benefitted from the Board’s ultimate 

approval of the conditional use permit, the role of the ex parte communication in 

that approval is limited. The abutters had the full opportunity to respond to both

the selection of and the findings by the Board’s independent peer reviewer at the 

public hearing on November 17, 2011. See Cunningham, 400 A.2d at 1078-79; 

Prof’l Air Traffic Controllers Org., 685 F.2d at 565. Finally, vacating the Board’s 

decision and remanding with instructions to hire a new independent peer reviewer 

would not serve any purpose because, as discussed below, see infra ¶ 30, the Board 

ultimately found Berwick Iron’s air emissions expert credible, and there is ample 

evidence in the record to support the Board’s finding. See Prof’l Air Traffic 

Controllers Org., 685 F.2d at 565. Therefore, the ex parte communication between 

the Board and Berwick Iron does not require us to vacate the Board’s decision.

B. Air Emissions Standards

[¶22] In reviewing a planning board’s decision, we defer to the board’s 

factual findings; “we do not substitute our own judgment for that of the Board,” 

and will vacate its judgment only “if no competent evidence exists in the record to 

support it.” Nestle Waters N. Am., Inc. v. Town of Fryeburg, 2009 ME 30, ¶ 33, 

967 A.2d 702 (quotation marks omitted). “[T]he fact that the record before the 
14

Board is inconsistent or could support a different decision does not render the 

decision wrong.” Id. (quotation marks omitted). However, “[t]he interpretation of 

a local ordinance is a question of law, and we review that determination de novo.” 

Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 16, 868 A.2d 161; see also Isis 

Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3 n.4, 836 A.2d 1285 (stating that 

although we generally defer to a state agency’s technical expertise, “[w]e review 

interpretations of local zoning ordinances by local volunteer boards de novo”).

[¶23] “In interpreting a statute or ordinance, we look first to the plain

meaning of its language to give effect to the legislative intent, and if the meaning 

of the statute or ordinance is clear, we need not look beyond the words 

themselves.” Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903.

“Words [in the ordinance] must be given their plain and ordinary meaning and 

must not be construed to create absurd, inconsistent, unreasonable, or illogical

results.” Bushey v. Town of China, 645 A.2d 615, 617-18 (Me. 1994) (quotation 

marks omitted).

[¶24] The abutters argue that (1) the Board erred in relying on a study that 

based its evaluation on state and federal air quality standards; and (2) even if the 

evaluation was based on standards that were more stringent than state and federal 

requirements, the Board failed to make specific findings that the facility’s air 

emissions would not be “injurious” or “detrimental to the enjoyment” of 
15

neighboring properties. See Berwick, Me., Land Use Ordinance § 7.1

(Nov. 2, 2010). Section 7.1 of the Berwick Land Use Ordinance states:

Emission of dust, dirt, fly ash, fumes, vapors or gases which could be 

injurious to humans, animals or vegetation, detrimental to the 

enjoyment of adjoining or nearby properties or which could soil or 

stain persons or property, at any point beyond the lot line of the 

commercial or industrial establishment creating that emission, shall 

not be permitted. Any air emissions must meet all applicable state 

and federal statutes.

[¶25] The plain language of section 7.1 of the Berwick Land Use Ordinance 

sets out a fixed test that prohibits three types of emissions: (1) “injurious” 

emissions, (2) emissions “detrimental to the enjoyment of” neighboring properties, 

and (3) emissions that “could soil or stain persons or property.” In its 2012 

judgment, the court determined that “[i]f compliance with state and federal statutes 

were sufficient[,] then the ordinance would have consisted solely of the second 

sentence.” The court concluded that the Berwick ordinance must therefore be 

more stringent than state and federal statutes.

[¶26] However, even if the ordinance does restrict more emissions than 

state and federal laws, in the matter before us, the Board addressed those standards 

and made findings, supported by the record, that the proposal met the ordinance 

standards.

[¶27] The air emissions study that Berwick Iron provided to the Board 

stated that the Board could rely on compliance with the Clean Air Act as evidence 
16

that the project complied with the ordinance because the national ambient air 

quality standards regulate the same types of emissions as those described in 

Section 7.1 of the ordinance.

4 In the Clean Air Act, Congress authorizes the 

Administrator of the Environmental Protection Agency to establish the national 

ambient air quality standards, which “in the judgment of the Administrator, . . . are 

requisite to protect the public health,” and “to protect the public welfare from any 

known or anticipated adverse effects associated with the presence of such air 

pollutant in the ambient air.” 42 U.S.C.A. § 7409(b) (West, Westlaw through 

P.L. 113-49). The Clean Air Act defines “welfare” as follows:

All language referring to effects on welfare includes, but is not limited 

to, effects on soils, water, crops, vegetation, manmade materials, 

animals, wildlife, weather, visibility, and climate, damage to and 

deterioration of property, and hazards to transportation, as well as 

effects on economic values and on personal comfort and well-being, 

whether caused by transformation, conversion, or combination with 

other air pollutants.

42 U.S.C.A. § 7602(h) (West, Westlaw through P.L. 113-49) (emphasis added). 

Emissions that “could be . . . detrimental to the enjoyment of” neighboring 

properties, Berwick, Me., Land Use Ordinance § 7.1, are very similar to those that 

may have “effects on . . . personal comfort and well-being,” 42 U.S.C.A. 

 4

 Although section 7.1 of the ordinance refers to both state and federal statutes, in 2011, the 

Legislature repealed the Maine ambient air quality standards and amended the statute to provide that 

Maine’s ambient air quality standards are equivalent to the national ambient air quality standards. See 

P.L. 2011, ch. 206, § 19 (codified at 38 M.R.S. § 584-A (2012)). See also 42 U.S.C.A. § 7409 

(West, Westlaw through P.L. 113-49) (providing for the establishment of the national ambient air quality 

standards); Berwick, Me., Land Use Ordinance § 7.1 (Nov. 2, 2010).
17

§ 7602(h). Similarly, those emissions that “could soil or stain persons or 

property,” Berwick, Me., Land Use Ordinance § 7.1, are analogous to those 

emissions that have “effects on economic values,” 42 U.S.C. § 7602(h). Thus, the 

Board did not err in relying on compliance with the national ambient air quality 

standards to support its conclusion, in part, that the facility would comply with 

section 7.1 of the Berwick ordinance.

[¶28] Although the Berwick Land Use Ordinance restricts the same types of 

emissions as those regulated by federal law, the ordinance is more restrictive than 

state and federal statutes in two ways. First, it has a broader scope. The Clean 

Air Act requires the Administrator of the Environmental Protection Agency to 

regulate those emissions that “cause or contribute to air pollution which may 

reasonably be anticipated to endanger public health or welfare.” 42 U.S.C.A. 

§ 7408(a)(1)(A) (West, Westlaw through P.L. 113-49). In exercising this 

administrative discretion, the Environmental Protection Agency has enacted 

detailed regulations of sulfur oxides, particulate matter, carbon monoxide, and 

lead, among many others. See 40 C.F.R. §§ 50.4-50.18 (West, Westlaw through 

Nov. 27, 2013). In contrast, the ordinance is not limited but applies to all air 

emissions. See Berwick, Me., Land Use Ordinance § 7.1. Second, the ordinance is 

more restrictive because it is fixed. If the federal standards and applicable state 

standards are relaxed in the future to permit the three types of emissions described 
18

in the Berwick ordinance, then section 7.1 of the ordinance imposes independent 

requirements that must be met in addition to the state and federal standards.

[¶29] The Planning Board had sufficient evidence to conclude that Berwick 

Iron’s proposed project met the standard in section 7.1. First, Berwick Iron 

provided the Board with a copy of the air emissions license granted by the 

Department of Environmental Protection for the proposed metal shredder. The 

permit is evidence that, with regard to those sources regulated by federal law, the 

emissions would meet section 7.1. Second, the study provided by Berwick Iron

provided a conservative analysis of the proposed emission levels in two ways: first, 

by assuming the facility would operate twenty-four hours per day and 365 days per 

year, and second, by employing more stringent state environmental standards that 

have been repealed.

[¶30] In granting the air emissions license for this project, the Department 

of Environmental Protection noted that the only emissions addressed in the license 

were those from the diesel engine and from the water sprays released by the 

shredder. Both Berwick Iron’s expert and the Board’s independent peer reviewer

agreed that in their professional judgment any emissions from other sources, 

including other parts of the shredder, the conveyor belt, movement of metals in 

sorting, storage, and separation, and road dust, would be minimal. As a result, 

Berwick Iron’s expert concluded, and the Board’s independent peer reviewer
19

agreed, that the proposed project would not emit any of the three types of 

emissions restricted in section 7.1. The Board concluded that, due to these 

additional considerations, the proposed project would meet the requirements of 

section 7.1 of the ordinance, and that conclusion is supported by ample competent 

evidence in the record. See Nestle Waters N. Am., Inc., 2009 ME 30, ¶ 33, 

967 A.2d 702.

C. Noise Standards

[¶31] The abutters argue that the Planning Board erred in concluding that 

the proposed project would meet the provision of the Berwick Land Use Ordinance 

governing noise because live sound tests indicated that the shredder exceeded the 

maximum decibel levels set out in section 7.6 of the ordinance. The ordinance 

provides: “The maximum permissible sound pressure level of any continuous, 

regular or frequent source of sound produced by any activity shall be limited by the 

time period and land use district” listed in the ordinance. Berwick, Me., Land Use 

Ordinance § 7.6 (Nov. 2, 2010). The ordinance lists sixty decibels as the daytime 

limit in residential districts and seventy-five decibels as the daytime limit in 

industrial and commercial districts. Id. Further, section 7.6 provides an exception 

for a single period of fifteen minutes per day, in which the applicant may exceed 

the ordinary noise levels by up to ten decibels. Id.
20

[¶32] The parties dispute whether the applicable noise level is measured 

from the place where the noise is generated, applying the decibel level that governs 

the district in which the property is located, or whether the noise level is measured 

wherever the noise can be heard. The abutters argue that, because the shredder 

noise can be heard in the abutting residential district, the ordinance prohibits the 

noise emitted from the shredder from exceeding sixty decibels as measured in the 

residential district.

[¶33] We need not resolve this issue, however, because the evidence in the 

record supports the Board’s determination that the shredder would meet the lower

sixty-decibel standard as measured at the neighboring property. The Board found 

that “even if the Ordinance imposed a 60 [decibel] standard at an abutting 

residential district line, the evidence shows that the project will meet that standard, 

with only a single daily exception of less than 15 minutes, which is allowed by the 

Ordinance.”

[¶34] During the live sound test, the abutters’ sound engineer recorded one 

instance at the end of the hour-long test during which the sound level at a 

neighboring property exceeded 60 decibels—measuring 61.4 decibels. A 

representative of Berwick Iron testified that the sound levels increased during the 

last few minutes of the sound test because the operators clear all of the metal out of 

the machine when shutting down the machine, which causes an increase in the 
21

noise levels. He further testified that the higher noise levels would occur only once 

per day and would be completed within the fifteen-minute period during which the 

operation is permitted to exceed the sound limitation by ten or fewer decibels. See 

id. The decibel measurements taken by the abutters’ sound engineer supports the 

Board’s finding, and, therefore, the Board did not err in determining that the 

proposed metal shredder would meet the noise standard in the ordinance. See 

Nestle Waters N. Am., Inc., 2009 ME 30, ¶ 33, 967 A.2d 702.

The entry is:

Judgment vacated. Remanded for entry of 

judgment affirming the Berwick Planning Board’s 

approval of the land use permit.

_______________________________________

On the briefs:

Matthew D. Manahan, Esq., Catherine R. Connors, Esq., and Dixon P. Pike, 

Esq., Pierce Atwood LLP, Portland, for appellant Berwick Iron & Metal 

Recycling, Inc.

Timothy S. Murphy, Esq., Prescott, Jamieson, Nelson & Murphy, LLC, Saco, 

for appellees Robert Duffy, et al. 

At oral argument: 

Matthew D. Manahan, Esq., for appellant Berwick Iron & Metal Recycling, 

Inc. 

Timothy S. Murphy, Esq., for appellees Robert Duffy, et al. 

York County Superior Court docket number AP-2012-6

FOR CLERK REFERENCE ONLY