2009 ADORNO & YOSS LETTER TO ATTY CARL GOODMAN RE: PUBLIC HEARING 4k
ADORNO & Y055
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KENNON F.WHIMAKER EMAIL: KWHR AKER@AOORNO.COM
November 30, 2009
Via Email and Rcuular First Class Mail
Carl D. Goodman, Esq.
152 Lynnway—Suite 1 E
Lynn,MA 01902
RE: Swampscott Road Transfer Station/Public Hearing For Minor
Modification of Site Assignment
Dear Attorney Goodman:
I am in receipt of the three communications you sent to me, as hearing officer for
the above cited public hearing, including;
1. November 10,2009 Petition To Intervene&Registration of Abutter on behalf
of Alan Samiljan and associated Notice of Appearance;
2. November I I Motion For Order As To Filing& Service,Certificates of
Service and Unpublished judicial opinion; and
3. November 23 Petition to Intervene and Registration of Abutter on behalf of
Bruce Glinski and associated Notice of Appearance,
As an initial matter and to supplement my response of November 24,2009 to the
above cited Motion For Order,in which I denied your request for required submission of
full-sized documents but informed you that the requested computerized image displays
were available in the public record,this letter will inform you that I have decided not to
grant your request for an Order to specify the method for filing papers and the service list
of parties. I believe these matters have been adequately addressed via the public hearing
process and an Order is not appropriate.
Of particular note here are the Petitions To Intervene& Registration of Abutter
which you have submitted on behalf of Alan Samiljan and Bruce Glinski. Taking these
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MISSOURI NEW JERSEY NEW YORK TEXAS, WASHINGTON, D.C.
AT MeyS ADM?IEA SOLELY IN THE JURISDICTION WHERE LISTED OFMCE IS LOCATED,UNLESS OTIERNISE NOTED
November 30, 2009
Page 2
in reverse chronological order, I must respectfully deny your petition on behalf of Mr.
Glinski. Although there are several grounds upon which this petition may be denied(as
explained in part in the following paragraph)the regulations of the Massachusetts
Department of Environmental Protection(MassDEP)providing procedural guidance for
the conduct of a public hearing with relation to Site Assignments specify that"[tlhe
registration of an abutter ...... or the petition of a person to be an intervener to the public
hearing shall be valid only if submitted prior to the commencement of the hearing." 310
CMR 16.20(9)(b). Because the petition on behalf of Mr. Glinski was received more than
one week after the commencement of the hearing, the regulations dictate denial of this
petition to intervene or register,
The November 10 petition on behalf of Mr. Samiljan does not suffer from
this late-filing defect. It is, however, based upon the premises that Mr. Samiljan is both
an abutter to the proposed expanded transfer station operation and that he is"specifically
and substantively affected by the hearing." The petition explains that Mr. Samiljan
should be considered an abutter by virtue of his partial ownership of common areas in the
condominium complex in which he resides. However,even if that common area is across
the street and/or does share a common boundary with the proposed transfer station
location as you claim, MassDEP has recognized that a partial owner of condominium-
related common areas abutting a location for which a permit is being sought lacks
standing to appeal as an abutter. (See In the Matter of Towermarc Boxborough Limited
Partnership, MassDEP Docket No. 99-014,No. 113-286,November 3, 1999,MA ENV
Lexis 649). Supporting case law is available although I will not present it here. In
addition, although the petition claims that Mr. Samiljan will be specifically and
substantively affected by the hearing, and by implication the proposed expansion of the
transfer station, this claim is supported only by generalized concerns regarding traffic,air
quality, dust, noise, etc. which are indistinguishable from those which are alleged or
likely to be of concern to the general public in the area. Indeed the petition appears to
recognize this fact by its frequent references to the"public"and"Public Health."
Without more,these claims do not rise to the level needed to show specific and
substantive impact on Mr. Samiljan, Because of these deficiencies, Mr. Samiljan's
petition to intervene and registration as an abutter is denied.
MassDEP regulation 310 CMR 16.20(9)(c) specifies that petition to intervene
"shall be treated as a petition in the alternative to participate." On this basis and the
contents of the petition and registration on behalf of Mr. Samiljan,I am prepared to grant
him status as a participant in this matter. (I note here that in its opposition to the
Samiljan petition, the applicant Northside Carting, Inc. states that it will not dispute Mr.
Samiljan's status as a participant if the Motion to Intervene is "withdrawn.") As a result,
the information which has been provided on behalf of Mr. Samiljan,to the extent that it
does not exceed that allowable to a hearing participant, will remain in the record. This
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MISSOURI NEW JERSEY NEW YORK TEXAS WASHINGTON, D.C.
ATTORNEYS ADHRTED SOLELY IN THE JDRISDICUON WRLRE LISTED OFFICE IS LOCATEO,UNLESS OTIERWISE NOTED
y
November 30,2009
Page 3
granting of participant status should not be deemed to constitute an expression or
agreement by me as Hearing Officer, by the Applicants or by the Board of Health that
Mr. Samiljan is a party in interest or that he may be aggrieved by any final decision in
this matter.(See 310 CMR(9)(d)1.
Very Truly Yours
Kenneth F. Whittaker Ph.D.
Adorno & Yoss LLP
cc: Northside Carting, Inc. c/o Thomas A. Mackie, Esq.
Elizabeth Rennard, Esq., City of Salem, MA
City of Salem Board of Health c/o David Greenbaum
Barbara Poremba, Ed.D., Chair, Salem Board of Health
CALIFORNIA FLORIDA GEORGIA ILLINOIS MASSACHUSETTS MISSOURI NEW JERSEY NEW YORK TEXAS WASHINGTON, D.C.
ATTORNEYS ADMrt SOLELY IN TME JURISDICTION WHERE LISTED OFFICE IS LOCATED.UNLESS OMERWISE NOTED