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Monday, 03 June 2019 13:20

Court Overturns Mashpee, MA, Body Shop Permit

Written by Wheeler Cowperthwaite, Cape Cod Times


Five years after a vehicle repair shop in Hyannis received a special permit for a new operation in Mashpee, the state Appeals Court has vacated the permit and a Barnstable Superior Court judge’s decision to uphold it.


The court ruled that Judge Gary Nickerson, who has since retired, erred when he upheld a special use permit granted to Accidental Auto Body, owned by Anthony Dupuis.


The Mashpee Zoning Board of Appeals issued the permit in 2014. Four neighbors appealed the board’s decision in Superior Court, citing the environmental impact of the spray paint used at the shop. Nickerson entered his order Dec. 7, 2017, after a bench trial.


Dupuis said he had no comment on the case but confirmed he has been unable to use the Mashpee property since the zoning board granted the permit. His shop needed a special use permit because the chemicals used to repaint vehicles would vent into the air.


Christopher Senie, the attorney for the neighbors, said the proposed auto repair shop was in an industrially zoned area but shared a property line with the residential area.


He said the key to the case was who carried the burden of proof—the neighbors or the auto body shop.


According to the Appeals Court opinion, Accidental Auto Body had the burden to prove that its painting would not “significantly decrease the air quality or have a significant adverse impact on neighboring properties.”


Nickerson, however, had flipped the burden to the neighbors to prove they would be harmed by the chemicals or the air quality would be reduced, according to the opinion.


Nickerson found that the paint shop would release “harmful molecules” into the air that would be a danger to people for up to five minutes after being vented and that there was no “affirmative evidence” of a decrease in air quality.


Therefore, he said, federal and state regulations that govern auto body shops were enough.


In a footnote, the Appeals Court wrote that typically, zoning boards and judicial findings are given deference by the courts, but the burden to prove a project will not hurt the public.

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