49-004 (20) glendale rd zoningAugust 10, 1990
Zoning Board of Appeals
City Hall
Northampton, MA. 01060
Re: Valley Aggregates
Dear Board Members:
You have requested an opinion as to the status of the Valley
Aggregate operations on Turkey Hill Road. I understand that the
Board is scheduled to hear an appeal from an abutter to the Valley
Aggregate site from the failure of the Building Inspector to act
on a complaint.
LEGISLATIVE HISTORY
In 19491 the City enacted a comprehensive revision of its
ordinances. A new zoning ordinance, Chapter 441 was enacted at
that time. The prior, rudimentary zoning ordinance, Chapter 46,
enacted in 19291 was repealed. Section 11(i)(5) of Chapter 44
provided that gravel banks and stone quarries would be permitted
in a Residence A district only after the grant of a permit from the
Zoning Board of Appeals. Section 16(a) provided that 'Any building
or part of a building or premises which at the time of the adoption
of this ordinance is being put to a non -conforming use may continue
to be used for the same purpose. 11 Section 10 (h) defined a non-
conforming use as a 'ruse which did not comply with this ordinance
at the time of its adoption... 11
The 1959 revision of the Code of Ordinances included the same
provisions in Chapter 44 as did the 1949 revision. However, the
1959 revision specifically stated that it did not repeal the
earlier Chapter 44. Therefore, all the provisions of that Chapter
remained in effect. In 1962, the City Council enacted Section 29
of Chapter 44. That section required the Building Inspector to
issue a permit before any party could remove more than ten cubic
yards of earth, gravel, sand, etc. from any location in the City.
Valley Aggregates Opinion
law or city ordinance. This power is outside of and in addition
to any zoning regulation. It would have been more appropriate and
more effective for the requirements of Section 29 of Chapter 44 to
have been enacted as a city ordinance, not a zoning ordinance, for
reasons which I will discuss below.
THE EFFECT OF NON -CONFORMING STATUS
Section 6 of Chapter 40A and its predecessors statutes granted a
certain level of tolerance to uses which exist in zoning districts
but are not currently permitted therein, i.e. non -conforming uses.
Section 16(a) of the 1949 ordinance recognized this by allowing the
continuation of non -conforming uses. The 1959 and 1975 revisions
preserved this protection. However, there was a major difference
between the 1975 protection afforded non -conforming uses and that
granted by earlier ordinances.
In the 1975 ordinance, a non -conforming use was defined as a use
"lawfully existing on the effective date of this ordinance". The
1949 ordinance defined a non -conforming use as one "which did not
comply with this ordinance at the time of its adoption". In the
1959 revision, a non -conforming use was defined as a use of
premises "which is not a use permitted by the provision of this
ordinance for the district in which (it) is located.
The requirement that the use had to be legally commenced was not
included in the ordinance until the 1975 revision. The prior
ordinances simply "grandfathered" all non -conforming uses in
existence at the time of the ordinance's adoption without inquiry
as to the legality of its commencement. The 1949 and 1959
ordinances, therefore, legitimized any existing uses which were not
in conformance with zoning on the date of the adoption of the
ordinance. Since the 1959 revision did not repeal Chapter 44, but
merely revised it, the critical date for legitimizing existing uses
is 1949.
The 1975 ordinance grandfathered all uses "legally existing" at its
adoption. Since the earlier ordinances did not impose a "legally
existing" standard in order to acquire non -conforming status, any
earth removal use in existence prior to the enactment of the 1949
ordinance, whether legally established or not, acquired valid non-
conforming status. Therefore, such a use was "legally existing"
for the purpose of acquiring valid non -conforming status under the
1975 ordinance and remains a valid, non -conforming use at this
time.
The significance of an earth removal by-law or ordinance enacted
under Chapter 400, Section 21(17) is its effect on non -conforming
earth removal uses. Such uses are protected under zoning by-laws
and ordinances, and new requirements on the operation of such a use
cannot be imposed through zoning unless there is a change,
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Valley Aq regates Opinion
alteration, or expansion of the use. However, non -conforming uses
have no protected status under a Section 21(17) bylaw or ordinance
Such a regulation may impose additional restraints and conditions
on the non -conforming use, although the subject matter which it may
control is limited. Methods and hours of operation are within its
scope. Traffic generated by the use is not.
Had the City enacted the 1962 ordinance as a city ordinance, it
could have imposed its conditions on any non -conforming earth
removal operation. As a zoning ordinance, only those operations
commenced after the effective date of the 1962 ordinance were
subject to its provisions.
EXPANSION OF A NON -CONFORMING USE
A non -conforming use cannot be regulated by subsequent zoning
ordinances. However, any expansion of that use may be so
regulated. Both the 1949 and 1959 zoning ordinances permitted the
expansion of a non -conforming use with the permission of the
building inspector. The 1975 ordinance provided that any non-
conforming use "shall not be extended, except that a nonconforming
principal or accessory use may be extended within the limits of the
lot existing as of the date of adoption of this Ordinance and shall
be in accordance with the dimensional and density regulations of
Article VI.11 In 1978, the requirement of a finding from the Zoning
Board of Appeals was imposed on the extension of non -conforming
uses.
Thus, under our local zoning ordinances, until 19751 a non-
conforming use could be expanded with the permission of the
building inspector. Proving that such permission was or was not
given is probably an impossible task. It will, therefore, be very
difficult to prove that a non -conforming use was illegally expanded
prior to 1975. At that point in time, the ordinance changed to
allow extension of a non -conforming use by right as long as it
remained on the same lot. Thus, the critical point for determining
the limits of a non -conforming use is 1978 when it became necessary
to obtain zoning relief from the Board of Appeals for an extension.
Massachusetts case law does discuss the concept of an extension of
a non -conforming use in relation to earth removal activities.
Those cases generally state that the depth of excavations cannot
be considered an extension of the use. However, the expansion of
the use onto new areas of a lot is an extension of the use.
THE STATUS OF THE VALLEY AGGREGATE OPERATION
Clearly it is crucial to determine the date when the gravel
bank/quarrying use was established on Turkey Hill Road. The Board
may weigh whatever evidence is presented as to that issue and make
a determination based on that evidence. If the Board is satisfied
by the evidence presented that the use was in existence prior to
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Valley Aggregates Opinion
19491 it must accord non -conforming use status to operation. If
it is not satisfied that the use existed prior to 1949, then it is,
at least in part, a non -complying use, not a non -conforming use and
entitled to no protection as such.
If the Board finds that the use was in existence in 19491 it then
becomes necessary to find the limit to which the use was allowed
to expand without violating the zoning ordinance. The critical
date is 1978 when the ordinance requiring a finding for extension
of a non -conforming use was enacted. The area actively in use as
a gravel bank/quarry in 1978 is the area which is legally available
for continued use. Any areas developed after 1978 are illegal
extensions of the use.
If the Board finds no evidence that the use was in existence prior
to 19490, then a special permit would have been required to
establish the use. The special permits granted in 1971 for the
south side of Turkey Hill Road would have legitimized that portion
of the operation. Any portion of the current operation not covered
by the 1971 permits would be either a continuing non -complying use
or an illegal extension of the special permit use. The dual
permitting process in place in 1971 does impose some confusion on
the situation. However, it is my opinion that the permit from the
Board of Appeals was unlimited in time. Only the Planning Board
permit required annual renewal.
The 1975 revision eliminated the Planning Board permit and added
the annual renewal condition to the Zoning Board of Boards permit.
However, since Valley Aggregates' Board of Appeals permit was
granted under the earlier, unlimited ordinance, that 1975 renewal
condition could not be attached to the Valley Aggregates permit.
That condition would affect only permits issued by the Board of
Appeals after 1975. Therefore, since 19750, there has been no
requirement for Valley Aggregates to renew the permit annually.
THE EFFECT OF THE SUPERIOR COURT DECISION
It is my opinion that the opinion of Judge Moriarty in the court
case tried earlier this year is not binding on this Board on the
issue currently before it. Judge Moriarty did not have all the
evidence before him nor did he have the 1949 and 1959 zoning
ordinances. He stated that, because no evidence to the contrary
was presented to him, he assumes that the gravel bank/quarry use
commenced in 1971 and was, therefore, subject to the special permit
requirement of the zoning ordinance. He did not examine Valley
Aggregates in the light of a non -conforming use.
The Zoning Board of Appeals may have evidence before it which was
unavailable to Judge Moriarty and which may be determinative as to
whether the gravel bank/quarry use is non -conforming. I recommend
that the Board consider carefully all the evidence before it and
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Valley Aggregates opinion
that it clearly and definitely articulate all its reasoning for the
decision it will make.
If any member of the Board has any questions as to this issue, I
will be happy to discuss it. I will be on vacation until August
27th but will be available on or after that date.
Very truly yours,
Kathleen G. Fallon
N.