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13 ELR 20466 | Environmental Law Reporter | copyright © 1983 | All rights reserved Town of Warren 1 2 v. Hazardous Waste Facility Site Safety Council3No. 82-21740 (Mass. Super. Ct. January 5, 1983)The court rules that the siting preemption is part of a general hazardous waste law that deals comprehensively with a statewide ities. First, the court holds that the council's determination that proposed disposal sites in Warren were "feasible and deserving of state assistance" is not a final administrative decision reviewable by the court. The court dismisses the complaint of intervenors Middlesex County on procedural grounds. The court then holds that the state laws do not unlawfully restrict local self government. The hazardous waste laws apply equally to all cities and towns and so conform to the Massachusetts Home Rule Amendment. Nor do the state hazardous waste disposal laws unlawfully delegate legislative power to private parties or the council. Private parties' only action is to file a notice of intent and the council's powers are administrative, not legislative. The court rules that the council is not required to conduct an adjudicatory hearing or adopt final rules and regulations prior to making a "feasible and deserving of state assistance" determination. The hazardous waste laws contain no adjudicatory requirement, the council's rulemaking powers are discretionary, and plaintiffs have no claim, right, or legitimate expectancy of an entitlement to state funds that deserve constitutional due process protection. The court holds that the bylaws recently adopted by the town, which specifically exclude hazardous waste facilities, are in effect zoning laws.They were adopted after the filing of the notice of intent and clearly conflict with the state's prohibition on exclusionary zoning changes following the filing of a notice of intent. The court also rules that a previous town bylaw prohibiting the deposit of refuse, garbage, or rubbish in the town is preempted with respect to hazardous waste facility siting. Counsel for Plaintiff William W. Hays Counsel for Plaintiffs-Intervenors Counsel for Defendants Jo-Ann Shotwell, Ass't Attorney General Kenneth Hoffman O'Neil, J.: Memorandum of Decision and Order on Plaintiffs' and Defendants' Cross Motions for Summary Judgment I. Procedural Background and History The court is presented with cross motions for summary judgment arising out of an action filed by the Town of Warren (Town) and individual citizens (Intervenors) against The Hazardous Waste Facility Site Safety Council (Council), The Department of Environmental Management (Department) and It Corporation (IT). The action involves a number of legal issues by which the plaintiffs seek to invalidate the Council's action of approving the initial step of IT's site proposal for the location of a hazardous waste facility in the Town of Warren as provided for under G.L. c. 21D. The Town and the Intervenors seek to invalidate this action on the basis that: (1) The procedures followed by the Council in making its decision were in violation of G.L. 30A and of the due process clause of the Fourteenth Amendment of the Constitution because the Council did not grant the Town an adjudicatory hearing. (2) The actions of the Council are invalid because the Council failed to adopt regulations before considering IT's proposal.(3) Chapter 508 of the Acts and Resolves of 1980 is unconstitutional because it unlawfully delegates legislative powers to private parties and to the Council. (4) The Council's Notice of Intent Subcommittee violated the Massachusetts Open Meeting Law, G.L. c. 30A, § 11 A1/2. A hearing was held on September 29, 1982 at which time all parties presented their oral arguments. The Massachusetts legislature created a Special Commission on Hazardous Waste (Special Commission) in 1979 to study alternative means for granting state and local approval for hazardous waste facility sites. St. 1979, c. 704. In 1980, through emergency legislation, the legislature adopted a bill drafted by the Special Commission regarding regulations for the disposal of hazardous waste materials. See St. 1980, c. 508, codified at G.L. c. 21C and c. 21D.4 Included in this legislation is a provision which prevents any city or town from amending its zoning laws to exclude a proposed hazardous waste facility from any existing industrial zoned area after an applicant has filed a Notice of Intent (NOI) with the Council. See St. 1980, c. 508, § 5 codified at G.L. c. 40A, § 9. On July 15, 1981 IT submitted a general NOI to the Council for the construction of a hazardous waste facility, but did not specify any particular site. On August 10, 1981 the Council's NOI subcommittee met to review IT's general NOI. On August 17, 1981 the full Council reviewed IT's NOI and determined that the proposal was "feasible and deserving of state assistance." The Council then invited submissions for suggested sites pursuant to G.L. c. 21D, § 9. On or about September 18, 1981 and November 19, 1981 IT submitted several site specific NOI's to the Council.5 On November 25, 1981 IT narrowed its choices to two sites in the Town of Warren. On December 11, 1981 the Council reviewed IT's NOI for the Town of Warren sites and found them to be "feasible and deserving" of state assistance. Accordingly, the Council then awarded funds to the Town of Warren for technical assistance in evaluating IT's proposal. Between the time IT filed its NOI's on September 18, 1981 and the Council's decision on December 11, 1981, the Town of Warren enacted two amendments to its by-laws at a special town meeting held on November 21, 1981 that restrict the siting of hazardous waste facilities in the Town. IT has moved for summary judgment on its counterclaim pertaining to the validity of these by-laws. The Town's complaint asserts that this court has jurisdiction in this matter under G.L. c. 30A and may determine the rights of the parties through G.L. c. 231A. I find that the action presents a case and controversy properly before the court under G.L. c. 231A in reference to the plaintiff's claims that St. 1980, c. 508 is unconstitutional, required the defendants to promulgate rules and regulations before considering IT's proposal and that the procedures followed by the Council violated the process clause of the Constitution. See Swartz v. Department of Banking & Insurance, 376 Mass. 593, 596 (1978). I find, however, that the court lacks jurisdiction over Count I of the Town's complaint. See MASS. R. CIV. P. 12(h)(3); Litton Business Systems, Inc. v. Commissioner of Revenue, 1981 Mass. Adv. Sh. 1207, 1210 (subject matter jurisdiction not conferred by consent, waiver or conduct). In that Count, the Town has asked this court to set aside the determinations of the Council regarding that body's decision that the proposed sites were "feasible and deserving of state assistance." The Town, however, has failed to exhaust its administrative remedies as it has only proceeded through the initial stage of the site proposal process required by G.L. c. 21D. "A proceeding for declaratory relief does not operate to suspend the ordinary requirement that a plaintiff exhaust his administrative remedies before seeking judicial relief." East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 450 (1973). The comprehensive procedures required by G.L. c. 21D clearly indicate that the Council's determination of the feasibility and desirability of the two Warren sites was just one of a number of steps required before a final decision on a site location is possible. Absent a final determination by an administrative agency, judicial [13 ELR 20468] review is not possible. See Boston Edison v. Brookline Realty & Investment Corp., 1980 Mass. App. Ct. Adv. Sh. 1155, 1158. Accordingly, the court will not review the Council's "feasible and deserving" decision.6 Plaintiff Intervenors' argument that this court may review the Council's action by writ of certiorari under G.L. c. 249, § 4 is also in error. Application for certiorari is proper only if a party has no remedy by appeal to correct errors of law made in a judicial or quasi judicial proceeding. Boston Edison Co. v. Board of Selectmen of Concord, 355 Mass. 79, 82-83 (1968). A petitioner must also exhaust all administrative remedies before judicial review through certiorari is possible. Id. at 84. The plaintiffs fail to meet either of these requirements. The action of the Council in makings its "feasible and deserving" determination was a purely administrative act wherein no party suffered a deprivation of any material right. The Council's decision merely determined whether IT's initial NOI was worthy of further study. By finding that IT's proposal was "feasible and deserving" all that the Council did was to make funds available to the Town of Warren so that the multi step process of G.L. c. 21D for evaluating such proposals could move along. The plaintiffs have failed to demonstrate that the Council's action has resulted in "substantial injury or manifest injustice" that warrants review by certiorari. Fiske v. Board of Selectmen of Hopkington, 354 Mass. 269, 271 (1968). The plaintiffs also have failed to produce any evidence in the record that the Council's decision was invalid due to an error of law. Bennett v. Board of Aldermen of Chelsea, 361 Mass. 802, 807 (1972). Accordingly, the court can not review the Council's decision under G.L. c. 249, § 4. The action brought by the Intervenors in Middlesex County, Middlesex Civil Action 82-903, must also be dismissed on procedural grounds. In this action the Intervenors allege that the Council's NOI subcommittee violated the State Open Meeting Law, G.L. c. 30A, § 11A1/2. On August 10, 1982 the NOI subcommittee met to discuss IT's general NOI request.7 No notice of this meeting was posted with the Secretary of State, nor were minutes taken at the meeting. A report of the meeting was prepared by the subcommittee and presented to the full Council on August 17, 1981. See Affidavit of Madeleine Kolb September 3, 1982. The Intervenors filed their complaint alleging violation of the State Open Meeting Law on February 22, 1982. Under these facts the Intervenor's complaint must be dismissed for failure to file the complaint with the twenty-one (21) day limitation period. See G.L. c. 30A, § 11A1/2. The NOI subcommittee report was "made public" at the August 17, 1981 Council meeting. This started the twenty-one day limitations period. Since the Intervenor's action was not filed until five months later, the complaint was not timely and must be dismissed.8 Having dismissed portions of the Town's and the Intervenor's complaints on procedural grounds, the only issues remaining arise out of facts upon which all parties have moved for summary judgment and where there are no issues of material fact in dispute. Summary judgment, therefore, is proper. Community Nat'l Bank v. Dawes, 369 Mass. 550, 553-554 (1976). 1. Chapter 508 of the Acts and Resolves of 1980 is Constitutional. The Town and the Intervenors assert that sections of Chapter 508 of the Acts and Resolves of 1980, codified at G.L. c. 21D, & c. 40A, unconstitutionally delegate legislative powers to the Council and private parties. The Town theorizes that the c. 40A, § 9 provision that freezes municipal zoning laws after an applicant files a NOI with the Council invests legislative power in private parties that infringes upon the right of self government provided under the Massachusetts Home Rule Amendment. See Massachusetts Constitution, Article 89 (amending Art. 2 of the Amendments to the Massachusetts Constitution). The plaintiffs also perceive an unconstitutional delegation of legislative power in violation of the Home Rule Amendment through the G.L. c. 21D, § 5 provision that empowers the Council to approve an applicant's NOI. The Town maintains that this power limits its right of self government because the Council's determination that a applicant's project is "feasible and deserving of state assistance" sets into motion a series of procedures whereby a municipality is eventually required to accept the placing of a hazardous waste facility within the community. At one time cities and towns in Massachusetts were considered creatures of the state. Whatever powers local government possessed were derived entirely from the state and could be summarily withdrawn. See Paddock v. Brookline, 347 Mass. 230, 238 (1964). With the passage of the Home Rule Amendment in 1966 this relationship was altered; the result being that municipalities were free to adopt any function or power except as specifically denied by their own charters or reserved to the state so long as the exercise of those powers did not conflict with the Constitution or with laws enacted by the legislature in accordance with the amended Article 2, § 8 procedures. Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 358 (1973). The scope of the Home Rule Amendment in disabling the legislature from enacting statutes that restrict local legislative actions is quite narrow. Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 773 (1976). Although local zoning ordinances or by-laws are considered to be independent municipal powers under the Home Rule Amendment, local governments can not exercise this power when such ordinances or by-laws conflict with a general law or special law enacted by the legislature in compliance with the Home Rule Amendment. Board of Appeals of Hanover, supra, at 359-360. The Supreme Judicial Court specifically has held that the Home Rule Amendment does not alter the legislature's supremacy in controlling zoning law so long as the legislature acts in accordance with Article 2, § 8. Id. at 360. Chapter 508 of the Acts and Resolves of 1980, codified at G.L. c. 40A, § 9, will withstand constitutional muster if it is found that the statute in question was enacted in accordance with the Home Rule Amendment procedure. The Home Rule Amendment states that "[t]he general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities or to all towns . . . ." Massachusetts Constitution, Article 89 (amending Art. 2 of the Amendments of the Massachusetts Constitution). Chapter 508 of the Acts and Resolves of 1980 clearly is a general law. By its own language it applies to "any city or town." G.L. c. 40A, § 9. As a properly enacted general law c. 40A, § 9 is not in violation of the Home Rule Amendment. The same reasoning applies to G.L. c. 21D which also applies to any city or town. Having found that the two statutes are not in conflict with the Home Rule Amendment, the only question left to resolve is whether either of these statutes impermissibly delegates legislative power. I find that neither G.L. c. 21D nor G.L. c. 40A, § 9 unlawfully delegates legislative power. The plaintiffs contention that the c. 40A, § 9 provision that freezes local zoning laws after the filing of a NOI gives private parties the power to prohibit local governments from enacting zoning ordinances is not persuasive. When an applicant files a NOI with the Council pursuant to G.L. c. 21D, the only action a [13 ELR 20469] private party engages in is the physical filing of the NOI. All further action is conducted through hearings held by the Council, the Department of Environmental Quality Engineering and the local Board of Health. See G.L. c. 21D. After a final determination on an applicant's proposal is made, the community is free to enact zoning ordinances in the area previously restricted from local zoning changes. G.L. c. 40A, § 9. The decision to incorporate the G.L. c. 40A, § 9 zoning freeze provision into the G.L. c. 21D site selection process was made by the legislature and not any private party. As stated previously in this opinion, c. 40A, § 9 is a valid general law that applies to all cities and towns in the Commonwealth and is not in violation of the Home Rule Amendment. The legislative decision to make this particular provision a part of all municipal zoning law is proper, and did not delegate power to private parties. See Board of Appeals of Hanover, supra at 360. The plaintiffs have failed to demonstrate any unauthorized delegation of legislative power to a private party similar to that found in Corning Glass Ware Works v. Ann & Hope, Inc., 363 Mass. 409, 423-424 (1973). In the instant case the legislature did not delegate law making power to the Council in G.L. c. 21D. The legislature merely authorized the Council to implement the details of the policy the legislature enacted pertaining to the site selection of hazardous waste facilities. See Arlington v. Board of Conciliation & Arbitration, supra at 775; Corning Glass Works, supra at 421; Commonwealth v. Diaz, 326 Mass. 525, 527 (1950). The legislature scheme contained in G.L. c. 21D is quite detailed and explicitly defines the powers of the Council. The legislature could properly empower the Council to allocate funds to cities and towns for technical assistance after the Council had determined that an applicant's proposal was feasible and deserving of state assistance. See Opinion of the Justices to the House of Representatives, 368 Mass. 831, 838 (1975). It was also proper for the legislature to empower the Council to determine how to allocate those funds in order to best carry out the legislative directive of locating suitable hazardous waste sites. See Opinion of the Justices, supra at 838. I find that G.L. c. 21D does not impermissibly delegate legislative powers to the Council. 2. G.L. c. 21D does not require that the Council grant an adjudicatory hearing to a city or town before rendering a "feasible and deserving" decision. By definition an adjudicatory proceeding means "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." G.L. c. 30A, § 1(1). In order to prove that a right to an adjudicatory hearing before an administrative agency exists, a person must demonstrate either: (1) that suchright exists under statutory authority or (2) such a hearing is constitutionally required. See School Committee of Hatfield v. Board of Education, 372 Mass. 513, 514 (1977). The plaintiffs have not cited any statutory authority to support the proposition that the Council was required to hold an adjudicatory hearing before making a decision to award funds to cities and towns for the study of hazardous waste facility proposals that are "feasible and deserving" of state assistance. The plaintiffs, therefore, are entitled to an adjudicatory hearing only if such a hearing is constitutionally mandated. See e.g., School Committee of Hatfield, supra at 514; Reid v. Acting Comm'n of the Dept. of Community Affairs, 362 Mass. 136, 144 (1972). A proceeding does not become "adjudicatory merely because it may affect the public, political or legislative functions" of a city or town. Reid, supra at 141. The plaintiffs must demonstrate that they had a property or liberty interest in the Council's "feasible and deserving" determinations rendered pursuant to G.L. c. 21D. See Lotto v. Commonwealth, 369 Mass. 775, 777-778 (1976). "Property interests are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state laws, rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." School Committee of Hatfield, supra at 515 quoting Haverhill Manor, Inc. v. Commissioner of Public Welfare, 368 Mass. 15, 23, cert. denied, 423 U.S. 929 (1975); Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). The plaintiffs do not have any legitimate claim of entitlement to the "feasible and deserving" funds allocated by the Council because the plaintiffs have not been deprived of any existing claim or right nor of any legitimate expectancy of an entitlement. General Law c. 21D granted the Council discretion in making a determination of awarding state assistance for "feasible and deserving" proposals. This discretion negates any claim of entitlement that mandates due process protections such as an adjudicatory hearing. See School Committee of Hatfield, supra at 516. Since no constitutional or statutory right to a hearing exists, the proceedings before the Council were not required to be adjudicatory in nature.See School Committee of Hatfield, supra at 516. 3.The Council was not required to adopt final rules and regulations before making its decisions concerning IT's Notices of Intent. The express language of c. 21D states that the Council is empowered "to adopt such rules, regulations, procedures and standards as may be necessary for carrying out its powers and performing its duties pursuant to the provisions of this chapter." G.L. c. 21D, § 4(13). I interpret the language "as may be necessary" as a legislative investment of discretion in the Council to make its own determination of what rules and regulations were required in order to carry out its duties. The language of c. 21D in no manner suggests that the Council had to formally promulgate rules or regulations prior to making its "feasible and deserving" decision. The record indicates that the Council did have informal regulations in place when the Council considered IT's general and site specific NOIs. The only question concerning these regulations is whether they satisfy the requirements of c. 30A, or as the plaintiffs also argue, the due process clause. I rule that the Council was not under a statutory obligation to issue formal regulations prior to considering IT's NOIs. For the reasons stated in subheading 2 of this opinion I also find that the plaintiffs were not deprived of any due process rights since the plaintiffs lack any property or liberty interest in the Council's decision which merely determined that IT's NOIs were "feasible and deserving of state assistance." 4. The Town of Warren's by-laws "Article 7" and "Article 9" approved at a Special Town Meeting on November 21, 1981 are invalid. IT and the Town of Warren have moved for summary judgment concerning the validity of certain by-laws enacted by the Town of Warren. The by-laws in question are "Article 7" and "Article 9" enacted by a vote of a special town meeting on November 21, 1981 and a by-law approved in 1972.9 The Town of Warren does not have a zoning plan. All land is unrestricted except for building permit requirements, frontage and lot size requirements, and a prohibition on the alteration of the size or shape of dwellings that conflicts with the frontage and lot size restrictions. I construe the Town of Warren's existing zoning law enacted in 1976 as permitting any use of land that is not incompatible with the surrounding area. Since there is no specific mention of what land uses are permitted in the town, I decline to interpret the town's zoning law as excluding industrial uses. See generally Brady v. Brady, 1980 Mass. Adv. Sh. 1053, 1056-1057. The facts of this case are similar to those involved in Rayco Investment Corp. v. Board of Selectmen of Raynham, 368 Mass. [13 ELR 20470] 385 (1975). In Rayco the Supreme Judicial Court held that despite the town's assertions to the contrary, a by-law adopted by the town was in effect a zoning law because to find otherwise would allow circumvention of the State Zoning Enabling Act procedures. Rayco Investment Corp., supra at 393-394. I find that the facts of this case warrant the conclusion that the amendments passed on November 21, "Article 7" and "Article 9," are in effect zoning laws. Both amendments specifically exclude the location of hazardous to the Town's other very generally worded zoning laws which do not specify any particular uses of land. Furthermore, the notice of hearing issued by the Town's Planning Board states that "Article 7" and "Article 9" were submitted to it "pursuant to c. 40A." Having found that "Article 7" and "Article 9" are zoning laws, it must then be determined whether these by-laws conflict with the provisions of G.L. c. 21D and c. 40A, § 9. The conflict between the two articles and c. 21D and c. 40A is clear. Both articles explicitly exclude the siting of hazardous waste facilities in the Town of Warren and specifically referred to G.L. c. 21D for the definition of a hazardous waste facility. Both articles also conflict with the G.L. c. 40A, § 9 provision which states "following the submission of a notice of intent, pursuant to § 7 of c. 21D, a city or town may not adopt any zoning change which would exclude the facility from the locus specified in said notice of intent." G.L. c. 40A, § 9. IT's site specific NOIs for the Town of Warren were filed on September 18, 1981 and November 19, 1981. As of November 19, 1981 the two locations named in the NOIs were excluded from any change in the Town's zoning laws under G.L. c. 40A, § 9. The Town's ratification of "Article 7" and "Article 9" at the November 21, 1981 special Town meeting runs contrary to the c. 40A, § 9 provision. I rule, therefore, that "Articles 7 and 9" are preempted by state law and are unenforceable. I further rule that the 1972 by-law pertaining to prohibiting the depositing of refuse, garbage or rubbish in the town does not apply to the siting of a hazardous waste facility in the town because the by-law is inconsistent with the provisions of G.L. c. 21D and G.L. c. 40A, § 9. See Bloom v. Worcester, 363 Mass. 136, 145 (1973). Having found that state law preempts the Town's by-laws I need not reach the asserted constitutional claims. It is Ordered that summary judgment enter for defendants, The Hazardous Waste Facility Council, The Department of Environmental Management and IT Corporation on all counts and on IT Corporation's counterclaim. 1. On March 26, 1982 the court allowed a motion to intervene by certain citizens of the Towns of Warren, West Warren, Wales, Brimfield, Wilbraham, Monson and Palmer, Massachusetts. The named intervenors are: Ursula S. Wright, William W. Wright, Jr., David E. Butler, William E. March, Michael J. Herbert, John Orszulak, Joan Prokop, Richard J. Brabowski, Joanna M. Lauterman, Linda M. Smith, Robert A. Buck, Clifford R. Marriot, Kathleen T. Griffin, Jean H. McGann, Roland J. Demers, George Ferraro, Charles McKinney, Cathy Rossi, Neva I. Kaufman, Nancy Beaudry, and James McLaren. 2. On February 22, 1982 three citizen plaintiffs Linda M. Smith, Ursula S. Wright and David E. Butler filed suit against the named defendants in Middlesex County for alleged violation of G.L. c. 30A, § 11A1/2, the State Open Meeting Law. The action was filed in Middlesex County solely due to venue requirements. On March 26, 1982 the court consolidated this action, Middlesex Civil Action 82-903 with the instant case. 3. The Department of Environmental Management and It Corporation. 4. General law c. 21C as amended, imposes more stringent licensing regulations for maintaining and operating hazardous waste facilities by requiring the posting of a bond or procuring liability insurance in case of an accident. Additionally, applicants seeking hazardous waste facility licenses are required to provide more detailed information to the Department of Environmental Quality Engineering concerning the applicant's experience, financial conditions, qualifications, detailed site proposals and submit environmental impact reports. See G.L. c. 21C. General Law c. 21D enacted new procedures for locating potential hazardous waste facility sites. The statute created a hazardous waste facility site safety council (Council) which, among other things, was empowered to advise all participants in the site selection process, review rules and regulations of the Department of Environmental Management relative to the hazardous waste facility siting process, administer, manage and coordinate the social and economic impact appendix report, award technical assistance grants to cities and towns where hazardous waste facilities may be located and review all proposals for construction and operation of hazardous waste facilities. An applicant desiring to place a hazardous waste facility in Massachusetts must first file a Notice of Intent (NOI) with the Council and others. The filing of this NOI initiates a multi-step procedure involving the submission of data, reports, and hearings relative to gaining approval for the facility site. In the instant case the defendant IT Corporation had only reached the third step of the process, the awarding of technical assistance to the Town of Warren, when the action was filed. 5. Site locations included land in Raynham, Middleborough, Westford/Chelmsford and two sites in Warren. 6. I also find that the Intervenors' complaint alleging jurisdiction upon G.L. c. 214, § 7A to be insufficient in that there was no demonstration that "damage to the environment is occurring or is about to occur." G.L. c. 214, § 7A. Such evidence is a prerequisite to obtaining the jurisdiction of the Superior Court. Nantucket Land Council, Inc. v. Planning Board of Nantucket, 5 Mass. App. Ct. 206, 215 (1977). Accordingly, the court need only reach the Intervenors' arguments pertaining to the constitutionality of G.L. c. 21D, and the other arguments incorporated within the Town's complaint that can be properly determined through a declaratory judgment. 7. The Intervenors have alleged in their briefs that a number of NOI subcommittee meetings were held, but have not supported this contention through any admissible evidence by way of affidavit. Both the Intervenors and the defendants have moved for summary judgment on this issue. While the defendants have supported their motion by affidavit that only one meeting of the NOI subcommittee was held, the Intervenors have not supported their contentions that more than one meeting was held. The failure of the Intervenors to set forth specific facts in opposition to the defendants' affidavit permits the court to enter summary judgment for the defendant if appropriate. MASS. R. CIV. P. 56(e). 8. Even if I am in error in finding that the Intervenors' action is not timely I find that summary judgment should enter for the defendants. The State Open Meeting Law applies to governmental bodies and a quorum of a governmental body. G.L. c. 30A, § 11A1/2. The statute requires that the open meeting requirements be followed if a quorum of a governmental body meets "in private for the purpose of deciding on or deliberating toward a decision on any matter." G.L. c. 30A, § 11A1/2. The Intervenors failed to produce any admissible evidence that the NOI subcommittee rendered any decision concerning IT's non-site specific NOI. Since the NOI subcommittee did not render a decision or deliberate towards a decision, G.L. c. 30A, § 11A1/2 is not applicable. 9. Article 7 reads as follows: No hazardous waste storage, treatment, or disposal facility, as defined in Chapter 21D of the General Laws of Massachusetts shall be permitted within the Town of Warren, with the exception of those wastes generated within the Town, which may be stored, treated or disposed of by special permit of a Safety Board to be established by the Board of Selectmen. No hazardous waste facility as defined in Massachusetts General Laws, Chapter 21D, shall be located on land subject to flooding, or on any bank, beach, dune, flat, marsh, meadow, swamp, or fresh water wetland, or within 500 feet of said land or resource. Land subject to flooding shall mean land inundated by the 100 year flood elevation whether by rise in surface water or ground water. No such facility shall be located on a site underlaid by stratified drift aquafers which are being used for public water supply or have a reasonable potential for such use in the future. The 1972 by-law reads as follows: No refuse, garbage, or rubbish from outside the limits of the Town of Warren shall be deposited in any area of the Town. 13 ELR 20466 | Environmental Law Reporter | copyright © 1983 | All rights reserved |