P.J. Keating Co. v. Town of Acushnet, 104 Mass. App. Ct. 65, 233 N.E.3d 1097 (2024), review denied, 2024 WL 3346086 (Mass. June 27, 2024).

In P.J. Keating Co. v. Town of Acushnet, the Board of Health (the “Board”) of the town of Acushnet, MA (the “Town”) had issued a cease-and-desist order requiring P.J. Keating (“PJK”), a long-time operator of a hot-mix asphalt plant in the Town, to halt its operations due to the spread of noxious fumes and odors beyond PJK’s property. 

Although PJK’s property was zoned for industrial use, it had recently constructed a new asphalt plant on its property closer to residential neighborhoods. Soon after PJK commenced operations at its new plant in 2021, Acushnet residents began experiencing adverse physical symptoms, such as headaches, nausea, and dizziness, and filed numerous complaints with the Board. Following an investigation, the Board confirmed the presence of “nuisance odors” at residences close to the plant as well as at the Town’s senior center. The Board then, pursuant to G.L. c. 111, § 122, ordered PJK to cease and desist from operating its plan and to remedy the cause of the odors. 

In June 2022, the Board held an evidentiary hearing and heard testimony from numerous residents concerning the plant’s adverse effects. The Board ultimately determined that the plant posed a public nuisance that impaired neighboring property owners from enjoying their properties and issued an order requiring PJK to cease and desist from any operations that caused odors and fumes to spread beyond the boundaries of its property. Although PJK sought judicial review of the Board’s order in the Superior Court pursuant to G.L. 30A, § 14, the trial judge ultimately reviewed the order pursuant to G.L. c. 249, § 4, as an action in the nature of certiorari. The trial judge rejected the Board’s findings that the plant was a nuisance and further held that the Board’s order was invalid because there was no credible evidence that the odor emanating from PJK’s plant was injurious to public health. The Board appealed from the trial court’s order to the Appeals Court.

The Appeals Court reversed. It first confirmed that appeals of a board of health’s decision are reviewable pursuant to G.L. c. 249, § 4 and not G.L. c. 30A because a board of health is not an agency as that term is defined pursuant to G.L. c. 30A, § 1(2). It further determined that its review was limited to whether the Board could properly conclude on the evidence before it that PJK’s plant caused a public nuisance. The Appeals Court held that the Board’s order was supported by substantial evidence comprised of testimony from residents who complained that they were unable to go outside in their neighborhoods due to the odors emanating from the plant that caused burning sensations in their noses and eyes. The Appeals Court held that the Board could find a public nuisance even where less than the entire community was affected or where the nuisance did not occur at all hours of each day. Further, the Appeals Court concluded that even though the plant was located in an area zoned for industrial use and constructed in accordance with PJK’s building permit, these facts did not immunize the plant from being found to create a public nuisance. Although it is true that a board of health’s regulations cannot contravene zoning laws, a trade or employment must comply with valid orders and regulations of a board of health.