49-004 (23) glendale rd legal mattersHAMPSHIRE, ss.
- 89 113
COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION
NO. 89-113
VALLEY AGGREGATES CORP.
Plaintiff
Vs.
NORTHAMPTON ZONING BOARD OF APPEALS,
ROBERT C. BUSCHER, CHAIRMAN,
Defendant
FINDINGS, RULINGS AND ORDER FOR JUDGMENT
This is a civil action whereby the plaintiff seeks to appeal
pursuant to the provisions of G.L.c. 40A, § 17 from a decision of
the Zoning Board of Appeals of the City of Northampton; and in
which it requests, in' effect, a declaratory judgment that certain
relief sought by it has been constructively granted. The case was
tried before me without a jury during the April 1990 session of,
the court at Northampton. On the basis of the evidence presented
at that trial, together with stipulations of the parties in open
1 I0
JUN 6 1990
060
t
{
court and in their Pre -Trial Conference Memorandum, I made the
following findings of fact.
FINDINGS
I. The Existing Operation and the Plaintiff's Proposal.
The plaintiff's sister corporation, Jedoran Realty Corp.,1 is
the owner of a large (74 acres) tract of undeveloped land lying in
the outskirts of the City of Northampton on an old unpaved roadway
of uncertain location known as Turkey Hill Road. A small portion
of the tract (about 2.5 acres) has been used for many years, first
by James Wzorek, Jedordan's predecessor in title and, since
Jedordan's acquisition of the property, by Valley Aggregate, as a
gravel pit. It is presently being used by Valley Aggregate as a
gravel pit and quarry. The site has been used to provide raw
materials for a sand, gravel and concrete business operated first
by Wzorek and more recently by Valley Aggregate from a location at
383 Westhampton Road in the City of Northampton. Valley Aggregate
acquired the business, including its machinery, trucks and
equipment, from Wzorek at the same time that Jedordan acquired
title to the Turkey Hill Road tract.
As the business is presently operated, gravel and stone are
mined at the Turkey Hill Road site, crushed at that location to
less than 12 inch size, and then transported by "belly -dump"
1 Both the plaintiff, Valley Aggregates Corp., and Jedoran
Realty Corp. are owned by the same individuals. RR M
2 O LS --�
� U
n JUN 6 1990
CITY CLERKS OFFICE
j NORTHAMPTON. P1ASS. OlOSO
trailers to the Westhampton Road site where the material is further
crushed to 1-1/2 inch, 3/4 inch and 1/2 inch stone or gravel or to
sand, and then sold to customers. Some portion of the product is
mixed with cement in a batching plant located on the Westhampton
Road property to produce concrete which is sold and transported
from the property in "ready -mix concrete" trucks. In addition to
the batching plant, there are also a scale house containing a
platform scale, an office, and a garage for the repair and
maintenance of the vehicles and equipment used in the business
located on the Westhampton Road property.
The plaintiff now proposes to remove its operation from the
Westhampton Road property to the 2-1/2 acre site on Turkey Hill
Road where its gravel pit/quarry is being operated. It is its
effort to obtain the necessary permits to accomplish that removal
that has given rise to this litigation.
II. The 1971 Permits.
The parties have agreed in their Pre -Trial Conference
Memorandum that in 1971 the Turkey Hill Road site was located in
a Residence A zone. The zoning ordinance that was in effect at
that time was Chapter 44 of the Revised Ordinances of Northampton.
Section 11 of that ordinance contained the use regulations
applicable to Residence A zoning districts, and sub -section (i)5
of that section provided that land in such districts could be used
for, among other things, stone quarrying, gravel bank, -sand bank
and the removal of top -soil, but only if authorized by a permit
3
JUN 61990
issued by the Board of Appeals after a public hearing.
Section 29 of said Chapter 44 provided that there could be no
removal of top soil, earth, sand, gravel, clay or stone from any
lot in any district in a quantity greater than 10 cubic yards,
except with the approval of the Planning Board after a public
hearing and subject to a number of conditions including the
submission of a plan showing existing grades in the area from which
material was to be removed, and showing what the finish grades
would be at the conclusion of the operation. The plan was also
required to provide for proper drainage of the area of the
operation during and after completion. Section 29 further required
that the removal area be covered with top soil after the completion
of the operation; required that the applicant file a bond with the
Planning Board to guarantee conformity with the conditions of the
permit; and provided that the permit would be valid for a period
of not in excess of one year but would be renewable in subsequent
years under the same conditions as the original application.
On January 4, 1971, James F. Wzorek applied to the Board of
Appeals for a permit under the provisions of Section 11(i)5 and a
variation (sic) from the requirements of Section 11 of Chapter 44
of the City Ordinances of Northampton. In his application he
stated that he intended to use the premises on the south side of
Turkey Hill Road as a gravel bank in connection with his concrete
business. As reasons for his application he stated:
The Zoning Ordinance provides for gravel banks in
Residence "A" Districts after obtaining a permit from the
Board of Appeals. The Ordinance is unclear as a variance
is required to conduct a related business in conjunction
M
4 , 1
=Ju�'16
CITY CLERKS OFFICE.
with the gravel bank and I am therefore also requesting,
a variance. The use will not be injurious, noxious or
offensive to the neighborhood. A substantial hardship
is involved as a petitioner needs additional gravel to
continue his concrete business. The granting of the
variance would not result in any detriment to the public
good and will not derogate from the intent and purpose
of the Zoning Ordinance.
On May 18, 1971, the Board of Appeals voted to grant the
permit but to deny the variance. The decision of the Board was
filed in the office of the City Clerk on June 4, 1971.
Wzorek was also granted a permit by the Planning Board to
remove top soil, earth, sand, gravel, clay or stone in excess of
10 cubic yards from his Turkey Hill Road property in accordance
with the provisions of Section 29 of Chapter 44. That permit was
granted after a public hearing on August 12, 1971. It was granted
on various conditions as prescribed by Section 29, was accompanied
by a plan showing the lines and grades to which the excavation was
to be dug, and provided that it was granted for a period of one
year. Wzorek filed a bond with the Planning Board as required by
the ordinance in the amount of $5,000.00.
The parties have stipulated that the Planning Board permit was
renewed each year until 1975. It has not been renewed since that
date but Wzorek and now Valley Aggregates have continued to keep
their bond in effect.
III. Adoption of the 1975 Ordinance.
The current zoning ordinance was adopted on July 22, 1975.
Although I was not provided with a copy of the entire pre -1975
5
RD
f
JUN 61990
CITY CLERKS OFFICE
NORTHAMPTON MASS. 01060
i
zoning ordinance for comparison purposes, it appears that what had
been Chapter 44 of the Revised Ordinances was extensively
rewritten. Of particular note for purposes of this case were the
following changes.
(A) Earth Removal & Processing Provisions
After the adoption of the new ordinance the plaintiff's
Turkey Hill Road property was located in a Rural Residential (RR)
zoning district. The new ordinance contained in Section 5.2 a
Table of Use Regulations which provided, among many other things,
that the following uses would be permitted in an RR district with
a special permit from the Board of Appeals:
1. Removal of sand, gravel, quarry
or other raw material (see Section 11.2)
2. Processing and treating of raw materials
including operation appurtenant to the
taking, such as grading, drying, sorting,
crushing, grinding and milling operations.
Those provisions are set forth on page 5-12 of the current
ordinance.
The new ordinance did not permit manufacturing uses or
commercial motor vehicle maintenance, garaging and parking
facilities, with or without a special permit, in an RR district.
It did permit those uses (either as a matter of right or with a
special permit) in Industrial zoning districts. The provisions
relating to manufacturing uses are set forth as part of Section 5.2
on page 5-12, and the provisions relating to motor vehicle
maintenance, garaging and parking facilities are set forth as part
6 n 15 U
a + JUN 6
1990 �
CITY CLERKS OF-FICE
of Section 5.2 on page 5-16 of the ordinance. -
Concrete batching plants are not mentioned as such at any
place in the zoning ordinance.
(B) Regulation of Earth Removal Operations.
The new ordinance eliminated what had been Section 29 of
the old Chapter 44 of the Revised Ordinances, and replaced it with
what is now Section 11.1 of the current zoning ordinance2. Section
11.1 contains a much more comprehensive scheme of regulation of the
removal of sand, gravel, quarry, loam, sod or other earth materials
and for the processing and treating of raw materials than had been
contained in the old Section 29. It regulates the distances from
public streets and property lines of areas where earth materials
may be removed, and where equipment for the sorting, washing,
crushing, grading etc. of such raw materials may be used. It
requires provision for off-street parking; the posting at accesses
to excavation areas of adequate KEEP OUT - DANGER signs; the
erection of fences around excavations and quarrys; provisions for
adequate drainage, lateral support of adjacent properties and
adequate control of dust during operation; and compliance with
state laws and regulations for the storing and handling of
explosives and for the control of water and air pollution. It also
2 In its Trial Memorandum, the plaintiff asserts that
Section 11.1 of the current ordinance was not adopted until 1977,`
so that there was a hiatus of two years between the elimination of
the old Section 29 of Chapter 44 and adoption of the new Section
11.1. There was no evidence presented at the trial to support that
assertion, but, assuming it to be true, nothing turns on the
existence of such a hiatus for purposes of this decision.
JUN 6 1990 , !
j CITY CLERKS OFFICE
rlORTHAMPTON MASS. 01050 1
r6quires in considerable detail the submission- -of land, -re-use
plans, their review by the Planning Board and the City Engineer,
and their approval by the Board of Appeals.
Under the new Section 11.1 compliance with the earth removal
and raw material processing regulations is assured by a requirement
of the filing of a Site Plan with the Building Inspector for any
land which is used or intended to be used for the extraction of
earth materials, and by a requirement of a special permit for a
period not to exceed one year granted by the Board of Appeals in
accordance with procedures set forth in Article X of the new zoning
ordinance. It requires that such Site Plans be prepared by a
registered professional engineer or a registered land surveyor and
specifies in considerable detail the information that must be shown
upon them. It also provides that the Board of Appeals may require
the posting of a surety company bond to guaranty conformity with
the provisions of the one-year permits.
Section 11.1 (17) specifically requires that to continue an
operation beyond the period designated in an initial one-year
permit, a new application must be granted in the same manner as for
the initial permit except that the Board of Appeals may waive in
writing requirements for submission of materials required in the
original application.
With regard to operations that were in existence when the new
ordinance was adopted, Section 11.1(18) provides as follows:
1.8 Existing Operations. Any existing sand or gravel
removal activity operating under a permit issued
prior to the date of adoption of this Ordinance may
continue until the expiration of the permit, except
8 qill
�a
=JUINI6
CITY CLERKS OF"'
N� CRTHAMPTCN, p1,Cc r,
that any expansion or change in operation not
covered by such permit shall require conformance
with the above regulations.
Although the plaintiff has continued to remove stone and
gravel from the Turkey Hill Road property since Jedoran acquired
the property from Wzorek; it has apparently made no effort to
comply with the requirements of Section 11.1. It has never filed
an application for a one year permit pursuant to that section, and
it never filed a site plan of any kind until sometime after
November 4, 1988. The site plan that was eventually filed was not
drawn in accordance with the ordinance because (if for no other
reason) it was not prepared by a registered professional engineer
or registered land surveyor.
In its Trial Memorandum the plaintiff argues that the
requirement of dual permits for earth removed (one under Section
5.2 and the other under Section 11.1) is for some reason invalid.
That argument is incorrect. It is established that municipalities
may regulate earth removal through their zoning ordinances of by-
laws, but also have the option of regulating earth removal through
a general ordinance or by-law by virtue of the provisions of G. L. c.
40, § 21(17). The two modes of regulation need not be mutually
exclusive. Thus a zoning ordinance may confine earth removal to
specified districts, while a separate earth removal ordinance may
govern how earth removal is carried out within that district. Toda
v. Board of Appeals of Manchester, 18 Mass. App. Ct. 317, 319-320
(1984). Ordinances adopted pursuant to G.L.c. 40, § 21(17) are not
zoning ordinances and hence are not subject to the requirements of I
9
R
JUN 6 19�
CITY CLERKS OFFICE
p;nRTHAMPTON MASS. 01060
G.L.c. 40A, § 6. Byrne v. Middleborough, 364 Mass. -331, 335. They
are authorized by statute in order to enable municipalities to
control a use of land which, if not itself a nuisance, has been
shown by experience to be likely to produce conditions bordering
upon a nuisance. Butler v. East Bridgewater, 330 Mass. 33, 37
(1953).
Although Section 29 of Chapter 44 of the Revised Ordinances
was, and Section 11.1 of the current ordinance is, contained in the
group of ordinances designated as "zoning" Ordinances, both of them
appear to have been intended to regulate the manner in which earth
removal is to be carried out rather than the zoning districts or
locations in which it is to be permitted. The locations are
controlled by the Table of Use Regulations contained in Section
5.2 of the ordinance. The two forms of regulation are not
inconsistent with each other.
IV. The 1975 Ordinance (other Pertinent Provisions).
A. Nonconforming Uses.
Article IX of the current zoning ordinance deals with
nonconforming uses, structures and lots. Insofar as pertinent for
purposes of this case, it closely follows the requirements of
G.L.c. 40A, § 6. With regard to the extension or alteration of
nonconforming uses, it provides as follows:
(b)
Pre-existing nonconforming uses may be extended oic
altered provided that no such extension or
alteration shall be permitted unless there is a
finding by the Zoning Board of Appeals that such
change, extension or alteration shall not be
substantially more detrimental than the existing
10
nonconforming use to the neighborhood and providing
that if such change, extension or alteration results
in all uses fully complying with the current zoning
requirements, then such finding is not necessary.
(Zoning Ordinance, Section 9.3(b), p. 9-2).
Section 2.1 of the zoning ordinance (p. 2-18) defines a
nonconforming use as: "A use lawfully existing at the effective
date of this ordinance, or any subsequent amendment thereto, which
does not conform to one or more provisions of this Ordinance."
B. Special Permits
Section 10.10 of the zoning ordinance (p.10-4) deals with
special permits. It provides that such permits "shall be granted
only after application to (sic) a hearing by the special permit
granting authority" and subject to the provisions of G. L. c. 40A and
of the ordinance. It provides that the application shall be made
to the Building Inspector on forms provided for that purpose, and
forwarded to the City Clerk when received in completed form, with
copies to the special permit granting authority3, the Planning
Department and such other departments and boards as may be
determined in the rules of the special permit granting authority.
It prescribes (in sub -section 3) the following findings that must
be made by the special permit granting authority before a special
permit may be granted:
(a) The use requested is listed in the Table of Use
Regulations as a special permit in the district for
which application is made or is so designated
elsewhere in this Ordinance.
3 The "permit granting authority" may be the Board of
Appeals, the Planning Board or the City Council, depending upon the
particular use that is being sought. fin^ M
11 1
JUN 6 1990
CITY CLERKS OFFICE
NORTHAMPTON. MASS. 01060
(b) The requested use bears a positive relationship to
the public convenience or welfare.
(c) The requested use will not create undue traffic
congestion of unduly impair pedestrian safety.
(d) The requested use will not overload any public
water, drainage or sewer system or any other
municipal system to such an extent that the
requested use or any developed use in the immediate
area or in any other area of the City will be unduly
subjected to hazards affecting health, safety, or
the general welfare.
(e) Any special regulations for the use as set forth in
Article XI are fulfilled.
(f) The requested use will not unduly impair the
integrity of character of the district or adjoining
zones, nor be detrimental to the health, morals, or
general welfare. The use shall be in harmony with
the general purpose and intent of the Ordinance.
and it authorizes the special permit granting authority to impose
additional conditions. It provides further that in order to enable
the special permit granting authority to determine that any
conditions or restrictions imposed by it are to be met, a site plan
must be submitted to the Building Inspector for review according
to the provisions of Section 10.11 of the zoning ordinance, and
following such review and prior to the issuance of any permits
therefore, forwarded by the Building Inspector to the special
permit granting authority with his comments for its final approval.
C. Variances
The current zoning ordinance does expressly permit use
variances. (See the second sentence of G.L.c. 40A, § 10). Section
10.9(3) of the zoning ordinance (p. 10-3) provides as follows:
3. Variances and Appeals.
12
Applications for variances
I JUN 6
1990
CITY CL`RKS
and appeals shall be heard by the Zoning Board of
Appeals subject to the provisions of Chapter 40A of
the Massachusetts General Laws. A variance which
has the effect of allowing a use not specifically
permitted for the district in question under the
Table of Use Regulations(ed. note: so called "use
variance) may be permitted, subject to the
provisions of said Chapter 40A.
D. Accessory Uses
The zoning ordinance defines an Accessory Use as: "A use
which is customarily incidental and subordinate to a principal use
of a structure or lot, or a use which is not the principal use, but
which is located on the same lot as the principal structure,
provided said accessory use is permitted in that District under
this Ordinance." (Zoning Ordinance, Section 2.1, p. 2-18).
Section 5.3 of the zoning ordinance (p.5-17) provides in part
as follows: "Any use which is accessory to a principal use allowed
by special permit, and which is not. specifically included in the
original special permit shall be allowed only after issuance of a
new special permit."
E. Height Restrictions.
Section 6.2 of the zoning ordinance (p.6-2) limits the
height of buildings in RR zoning districts to 35 feet or 2-1/2
stories, whichever is less. Section 6.7 (p. 6-7) specifies the
dimensional requirements of accessory structures and limits the
height of such structures in RR zoning districts to 20 feet.
F. Sign Regulations.
Article VII of the ordinance sets forth detailed
regulations for the erection of signs.
13
Section 7.2(15) of that
r� JUN 6
1990
CITY CLERKS OFFIC-E
NORTHAPliPTON, MANS. yam.
article provides that in particular instances the Board of Appeals
may issue a special permit allowing more than the number of signs
permitted or for signs of a greater size or height than permitted,
"but not in a location not ordinarily permitted by the zoning
ordinance". The erection of a business sign in a residential zone
would seem to require a variance.
G. Site Plan Review.
Section 10.11 of the zoning ordinance prescribes in
detail required procedures for site plan review and approval. It
requires that in the case of a major or intermediate project (all
parties agree that what the plaintiff proposes is a "major"
project 4) which requires a special permit, an application for a
site plan review must be provided to the Building Inspector at the
same time that application is made to the Special Permit granting
authority (in this case the Board of Appeals) for a special
permits. It requires that the application be on a form provided
for the purpose, accompanied by a required fee, and that it be
accompanied by a site plan containing certain prescribed data which
(in the case of a "major" project) must be prepared and stamped by
a registered Architect, Landscape Architect or Professional
Engineer. It requires that after the site plan application has
4 The ordinance defines a "major project" as one involving
new construction of 5,000 square feet or more of floor area.
5 In the case of a "major project", the ordinance (Section
10.11(3)C) requires a Site Plan Review by the Planning Board in
conformance with the filing, review and public hearing requirements
for a special permit, even though no special permit is required.
`�
14
JUN 6 1990 1,'
CITY CLERKS OFFICE
NORTHAMPTON, MASS. 01060
been received it must be forwarded to the City Clerk, stamped with
the date of filing, and then distributed to boards and departments
specified in rules adopted by the Planning Board.
The ordinance requires that in the case of "major" projects
the Planning Board must perform a site plan review (in accordance
with specified criteria) , seek the recommendation of the Department
of Public Works, and submit its recommendations to the Board of
Appeals within 35 days of the date of filing with the Board. The
Board of Appeal must also approve the site plan in accordance with
the same criteria, and must explain the reasons for its action in
its decision if contrary to the recommendations of the Planning
Board.
V. The Plaintiffs' July 20, 1988 Application.
On July 21, 1988, the plaintiff filed an application to the
Board of Appeals with the City Clerk of the City of Northampton.
The application was on a two page form provided by the Board to
which was attached a six page document entitled, "Petitioner's
Statement in Support .of Request for Permits for Use of Land on
Turkey Hill Road, Northampton, Massachusetts."
On the two page form the plaintiff requested two (2) variances
(one from the provisions of Section 5.2 on page 5-16 and the other
from the provisions of Section 6.7 on page 6-7 of the zoning
ordinance); a special permit under the provisions of Section 5.2
on page 5-12 of the zoning ordinance; and a finding under the
provisions of Section 9.3(b) on page 9-2 of the zoning ordinance.
15 D V L5
JUN 6 1990 . .
CITv "ERRS OFFICE
It described the proposed "work and/or use" as:
1. Construction of a maintenance building for repair
and maintenance of trucks used in petitioner's
business.
2. Erect a scale house for use in its business.
3. Erect a concrete batching plant for batching and
dispatching concrete.
In a space on the form provided for a statement of the reasons
upon which the application is based the plaintiff typed: "See
Petitioners (sic) statement attached to this petition."
In its attached statement the plaintiff stated that its
petition was for three (3) separate requests; (i) permission to
erect and operate a concrete batching facility to distribute
concrete, (ii) permission to construct a maintenance building and
garage for equipment used in the concrete business and in the
quarry business presently on the property, and (iii) permission to
allow the scale house presently located at the Westhampton Road
property to be moved to the Turkey Hill Road location. It stated
that it was submitting its request in the alternative for a
variance, special permit and/or a finding "because of the possible
application of one or more of those standards to the three separate
requests." I.t nevertheless requested the Zoning Board of Appeals
to consider each request as a separate request, "keeping in mind
that it is the plaintiff's goal to consolidate all of its
operations in one location."
The balance of the attached statement was primarily a brief
or written argument in support of the application.
16 JUN 619..0 �
CITY CLFR;',< OF iCr
NORTNAtAPT0 ;,
With regard to the proposed maintenance building the plaintiff
argued that it only needed a "finding" in accordance with the
provisions of Section 9.3(b) of the ordinance because (in its view)
such a building would be an "accessory use" to the business
presently being conducted on the property; but that it nevertheless
met the strict standards required for a variance if the Board
believed a variance was required.
With regard to the proposed scale house the plaintiff argued
that it needed only a "finding" pursuant to Section 9.3(b) because
a scale house would be an "accessory use".
With regard to the batching plant the plaintiff also argued
that only a "finding" was necessary, but conceded that either a
special permit or a variance might be required. It argued that it
met the required standards for any of the three types of relief.
With regard to its request for a dimensional variance (from
Section 6.7 on page 6-7 of the ordinance) the plaintiff stated as
its reason for the request that a silo attached to the proposed
batching plant would be approximately 50 to 60 feet tall and hence
in excess of the limits imposed by Section 6.7 of the ordinance.
VI. The Plaintiff's Site Plan.
The plaintiff's application was not accompanied by a site plan
at the time when it was filed. As a matter of fact no site plan
was filed until sometime after November 4, 1988. When a site plaft
was finally filed it did not comport with the requirements of the
ordinance. It had been prepared by one Marc F. Frecette, an
17
1990
b
JUN I " "
i
CITY CLERKS OFFICE '
NORTHAMPTON. MASS. 01060
t employee of the plaintiff who was neither a college graduate nor --
a Registered Architect, Land Surveyor or Professional Engineer.
The plan that was submitted was the first one that Mr. Frecette had
ever undertaken to prepare "on his own".
VII. The Claim of a Constructive Grant.
The plaintiff's application caused considerable confusion
among the members of the Planning Board and its staff6. On
September 29, 1988 the Planning Board's Secretary wrote to the
Assistant City Solicitor to request her view as to what was needed
to permit the plaintiff to proceed with its project.
A public hearing before the Board of Appeals, on the
plaintiff's application was scheduled for September 28, 1988. The
hearing was opened on that date but was continued to October 12,
1988 because only two members of the Board were present. A
continued hearing was held on October 12, 1988 but no action was
taken by the Board at that time.
On October 29, 1988 a period of 100 days had elapsed since the
date on which the plaintiff's application had been filed. On
November 10, 1988, the plaintiff filed a letter with the City Clerk
notifying her that the Board had failed to act on its petition and
asserting that its request for variances and for a finding as set
forth in its petition had been approved. A copy of the following
notice was enclosed:
6 It is the practice in Northampton for the Planning Board
to review all applications submitted to the Board of Appeals
informally, and, if deemed appropriate, to make non-binding
recommendations to the Board of Appeals. p
JUN 6 1990
CITYCL=RkS GFPW_inr�
NOTICE
MASSACHUSETTS GENERAL LAWS CHAPTER 40A. SEC. 15
In accordance with Massachusetts General Laws, Chapter
40A, Sec. 15, Notice is given that:
1. On July 21, 1988, a Petition was presented to the
Northampton Zoning Board of Appeals by Valley
Aggregates Inc., requesting that a Finding and
Variance be granted, (a copy of the Petition is
attached for your reference).
2. The Northampton Zoning Board of Appeals has failed
to make a decision on the request for Finding and
for Variance.
3. Pursuant to Massachusetts General Laws, Chapter 40A,
Sec. 15, the failure of the Board to act shall be
deemed to be the grant of the Finding and the
Variance.
4. You are hereby notified that as provided in the
Massachusetts General Laws, Chapter 40A, Sec. 17 you
have the right to Appeal the Grant of the Finding
and the Variance within twenty days of receipt of
this Notice by the City Clerk of the City of
Northampton.
5. This Notice was filed in the office of the
Northampton City Clerk on November 10, 1988.
The plaintiff also sent copies of that notice to all parties
in interest on the date that it was filed with the City Clerk.
VIII. The January 4, 1989 Application.
On January 4, 1989, the plaintiff filed a second application
with the Board of Appeals. That application was for a variance
from the provisions of Section 7.3 on page 7-4 of the ordinance,
and for a site plan review under the provision of Article 10.11 of
the ordinance.
19
(�
JUN 6 1990
CITY CLERKS OFFICE
N",RTHI i PION, Mk— �j.n:
As reasons for its second application the plaintiff stated
that a sign is necessary to identify their location on Turkey Hill
Road, and that a Site Plan Review is required for buildings to be
erected on Turkey Hill Road.
IX The
Decision
of the
Board.
At
a meeting
held
on March 1, 1989, the Zoning Board of
Appeals voted unanimously to deny the plaintiffs' application for
a Special Permit under the provisions of Section 5.2, Page 5-12,
Paragraph 2 to construct a concrete batching plant; a finding under
the provisions of Section 9.3(b), Page 9-2 to erect a scale house;
Site Plan Review under the provisions of Section 10.11; and a
Variance from the provisions of Section 7.3, Page 7-4 to erect a
ground sign in a residential area.
The Board found that the plaintiffs requests for variances
from the provisions of Section 6.7, Page 6-7 to erect a tower of
a height not allowed, and from the provision of Section 5.2, Page
5-16 to construct a maintenance building for repair and maintenance
of trucks used in the plaintiffs' business had been "appropriate"
requests, and had been constructively allowed because the Board had
not acted upon them within 100 days.
The Board of Appeals filed its decision with the City Clerk
on March 13, 1989.
This action was commenced on March 31, 1989.
20
JUN 6 1990 U
CITY CLERKS OFFICE
NORTHAMPTON MASS. 01050 __
CONCLUSIONS AND RULINGS
I. The Present Uses of the Turkey Hill Road Property Are Not Pre -
Existing Nonconforming Uses Capable of Being Extended by a
"Finding"
At the time when the current zoning ordinance was adopted in
1975, the Turkey Hill Road property had the benefit of a special
permit which allowed it to be used as a gravel pit. Such a use had
been subject to further regulation under the provisions of Section
29 of Chapter 44 of the Revised Ordinances of Northampton prior to
the adoption of the new ordinance, and it continued to be subject
to such further regulation under Section 11.1 of the new ordinance
(see Paragraph III(B) above), but for zoning purposes its use as
a gravel pit was and continued to be a conforming and not a
nonconforming use. Gravel pits are permitted in RR zoning
districts with a special permit from the Board of Appeals. .
It is not clear from the evidence when its owner began to use
the property as a quarry in addition to its use as a gravel pit.
It is a fair inference, however, that it was at sometime after May
181 1971 when the special permit to use it as a gravel pit was
granted. If the premises were already being used for rock
quarrying as well as gravel pit purposes at that time, a special
permit for both purposes would undoubtedly have been sought and
probably granted. It follows that whenever the quarrying operation
began the additional use was unlawful, because at all times since
at least May 18, 1971 a special permit has been required to use the
21
JUN 6 1990
CITY CLERKS OFFICE
NORTHAMPTON MASS. 01060 !!
premises for quarrying purposes and such a special permit has never_
been granted.
It follows that the uses to which the premises are presently
being put are not pre-existing uses subject to the provisions of
G.L.c. 40A, § 6 and Article IX of the zoning ordinance. That is
because use of the premises as a gravel pit was a permitted use
both before and after the adoption of the current zoning ordinance,
and their use as a quarry has at all times been unlawful.
Nonconforming uses are defined by the ordinance as uses lawfully
existing at the effective date of the ordinance, and not conforming
to one or more provisions of the ordinance. (See Para. IV A
above.)
It follows further that the changes which the plaintiff seeks to
accomplish cannot be authorized by a "finding ,7 on the theory that
they would constitute extensions of a pre-existing nonconforming
use. See Mendes v. Board of Appeals of Barnstable, 28 Mass, App.
Ct. 527 (1990).
The refusal of the Board of Appeals to make a "Finding" under
the provisions of. Section 9-3(b) of the zoning ordinance was
therefore correct.
7 In Northampton the authority of the Board of Appeals to
extend a pre-existing nonconforming use by means of a "finding" is
treated as different and distinct from its authority to grant
"special permits" for particular uses. In at least some other'
communities permission to extend a nonconforming use is called a
"special permit". See Mendes v. Board of Appeals of Barnstable,
supra. See also Willard v. Board of Appeals of Orleans, 25 Mass.
App. Ct. 15, 19 (1987). M
22
JUN 1990
6
'
{ CITY CLERICS OUT
MORTHAMPTON, Mf+Sl n'
II. The Plaintiff's Request for a Special Permit.
In order to achieve its objective of consolidating its
operations at the Turkey Hill Road site, the plaintiff requires a
special permit to permit it to quarry stone at that site, and a
special permit to use the site for the processing and treating of
the raw materials taken from the site, including the grading,
drying, sorting, crushing, grinding and milling operation. Those
uses are all permitted in an RR zoning district with a special
permit from the Board of Appeals, so to the extent that the
plaintiffs' application requested such special permits, the request
was appropriate.
The Board's decision to deny the request however, was also
appropriate.
In the first place, the July 20, 1989 application was not
accompanied by a site plan at the - time when it was filed as
required by Section 10.11 of the zoning ordinance. (See Paragraph
IV G above). It was therefore impossible for the Board to know at
that time precisely what was being proposed, or to gain the insight
of the Planning Board and the Department of Public Works
contemplated by the Site Plan Review procedure set forth in Section
10.11 of the ordinance.
When the plaintiff finally did submit a site plan at some time
after November 4, 1988, it was not prepared in accordance with the
requirements of the ordinance. It had not been prepared by a
Registered Architect, Landscape Architect or Professional Engineer,
but rather by one of the plaintiff's regular employees who
23 D
n JUN 6 1990
CITY CLERKS OFFICE ,
NORTHAMPTON, MASS. 01060 __
admittedly had never before prepared such a-p-lan.--
__-
Even more important, however, is the fact that the proposed
use would result in a substantial increase in the traffic on Turkey
Hill Road. The plaintiffs' customers who now bring their trucks
to the Westhampton Road property to pick up their sand or gravel,
and the plaintiff's own trucks which deliver those products to
customers from that site, would now have to travel back and forth
over a substantial section of Turkey Hill Road in order to perform
those functions. Turkey Hill Road is at best a narrow and ill-
defined dirt road which is not designed to accommodate the type of
traffic that would be engendered, but it does provide access to
other persons who own property abutting it. The proposed use would
create undue traffic congestion and unduly impair pedestrian
safety, would be detrimental to the general welfare of the area,
and would not be in harmony with the general purpose and intent of
the ordinance.
The Board of Appeals therefore acted well within its
discretion in declining to grant the plaintiff a special permit for
the proposed uses. Its decision in that regard was neither based
on legally ' untenable grounds nor unreasonable, whimsical,
capricious or arbitrary. See S. Kemble Fischer Realty Trust v.
Board of Appeals of Concord, 9 Mass. App. Ct. 477, 481, 402 N.E.
2nd 100 (1980).
The plaintiff does not contend that it obtained a constructive
grant of a special permit. As a matter of fact, in its letter to
abutters that accompanied its November
24
10, 1988 notice it
' 4 JUN 6 1990
CITY CLERKS OFFICE
AIORTMAPTON MASS. O1060
specifically stated that the Board of Appeals still had time to act
upon its special permit application. That statement was correct.
Although an application for a variance or for any other form of
relief other than a special permit must be decided by the Board
within 100 days after the date of filing in order to avoid a
constructive grant (G.L.c. 40A, § 15), a special permit is
constructively granted only if the Board fails to make its decision
with 90 days following the date of the public hearing. (G.L.c.
40A, § 9). Although it is not entirely clear from the evidence
presented before me on what date the meeting that commenced on
September 28, 1988 was finally concluded, the plaintiff has never
suggested that the decision was not made within 90 days after that
date. It has never filed a notice with the City Clerk claiming
such a constructive grant.
III. The Proposed Maintenance Building and Scale House.
If the plaintiff had properly applied for and been granted a
special permit to use the Turkey Hill Road property for the
grading, drying, sorting, crushing, grinding and milling of the
materials taken on the site, the special permit could have included
the scale house and maintenance building that the plaintiff wished
to erect upon the property. That is because the uses of those
structures would have been accessory to the principal use of
processing the raw materials. The scale house would have been used
to weigh the products of the operation before they were taken from
the property for sale or as they were being sold, and the
25 D V
JUN 6 1990
CITY CL; -r, c QFFf -
maintenance building would have been used to garage and service the
trucks and other equipment used in the operation.
In the absence of a special permit for the principal use,
however, neither use was one for which a special permit could be
granted.
The Board of Appeals therefore did not abuse its discretion
by refusing to grant special permits for those uses.
The plaintiff contends, and the Board of Appeals apparently
concedes, that even though the plaintiff may not move its
processing operations to the Turkey Hill Road site for lack of a
special permit, it has nevertheless obtained a constructive
variance to construct the proposed maintenance building upon the
site because the Board failed to act upon its application within
100 days after it was filed. The Board accepts that argument with
regard to the maintenance building because the application did
specifically request a "variance from the provisions of Section 5.2
on page 5-16 " of the ordinance; and because that portion of
section 5.2 on page 5-16 prescribes the zoning districts in which
commercial motor vehicle maintenance, garaging and parking
facilities are permitted and, by necessary implication, those
zoning districts in which they are prohibited. It reasons that
because the application specifically requested a variance from
those particular requirements of the ordinance, failure to act on
that request resulted in a constructive grant.
Apart from the issue of constructive grant, there was no
credible evidence presented at the trial held before me to justify
26
ry 9
UN �' Int 6
1
rI Y CL rni',' O t�l�i
the issuance of a variance. There was nothing--to--indicate that
there was anything relating to the soil conditions, shape or
topography of the plaintiff's land to distinguish it from all other
land in the RR zoning district in which it is located, or to
indicate why it could not be put to one or more of the uses
permitted in such a district without construction of a 12,000
square foot maintenance building or garage. The most that the
plaintiff demonstrated was that its business of selling sand and
gravel could be more conveniently operated from the Turkey Hill
Road site, and that a building for the maintenance and garaging of
its trucks and equipment is a necessary adjunct to the operation
of that business. This falls far short of a showing of a
"substantial hardship" of the type necessary to justify the
issuance of a variance. See Martin v. Board of Appeals of
Yarmouth, 20 Mass. App. Ct. 972, 482 N.E. 2nd 336 (1985), Gamache
v. Town of Acushnet, 14 Mass. App. Ct. 215, footnote 6, 438 N.E.2nd
82, footnote 6 (1982).
The Board of Appeals, however, did not deny the plaintiff's
request for a variance to construct a maintenance building. As
noted above, it "found" that the request had been granted by
default when it failed to act within 100 days of the filing of the
application. There is therefore no "appeal" before me relating to
that issue.
The plaintiff has prayed for a judgment declaring that its,
request for a use variance to construct and use a maintenance
building on the premises for the repair and maintenance of
27 nDR
JUN 61990
e
ti CITY CLERKS OFFICE
NORTHAMPTON, MASS. 01060
11
the issuance of variance. There was no tng-to--indicate that
there was anything relating to the soil conditions, shape or
topography of the plaintiff's land to distinguish it from all other
land in the RR zoning district in which it is located, or to
indicate why it could not be put to one or more of the uses
permitted in such a district without construction of a 12,000
square foot maintenance building or garage. The most that the
plaintiff demonstrated was that its business of selling sand and
gravel could be more conveniently operated from the Turkey Hill
Road site, and that a building for the maintenance and garaging of
its trucks and equipment is a necessary adjunct to the operation
of that business. This falls far short of a showing of a
"substantial hardship" of the type necessary to justify the
issuance of a variance. See Martin v. Board of Appeals of
Yarmouth, 20 Mass. App. Ct. 972, 482 N.E. 2nd 336 (1985), Gamache
v. Town of Acushnet, 14 Mass. App. Ct. 215, footnote 6, 438 N.E.2nd
82, footnote 6 (1982).
The Board of Appeals, however, did not deny the plaintiff's
request for a variance to construct a maintenance building. As
noted above, it "found" that the request had been granted by
default when it failed to act within 100 days of the filing of the
application. There is therefore no "appeal" before me relating to
that issue.
The plaintiff has prayed for a judgment declaring that its
request for a use variance to construct and use a maintenance,
building on the premises for the repair and maintenance of
WA
D � d
y
JUN 6 1990
CITY CLERKS OFFICE
NORTHAMPTON MASS. OIC 0
-equipment used in its business has been constructively granted.
(Prayer #1 of the Complaint). Because there is no actual
controversy with regard to that issue, a declaratory judgment would
not be appropriate.
IV. The Proposed Batching Plant.
In its application the plaintiff specifically stated that its
proposed use of the property included the erection of a concrete
batching plant for batching and dispatching concrete. It did not,
however, specifically request a variance for such a use. In the
statement attached to its application it took the position that a
batching plant would be an "accessory use" to its quarry operation
(and hence, in its view, required only a "finding"), but might also
be considered the processing and treating of raw materials
requiring a special permit under the provisions of Section 5.2 on
page 5-12 of the ordinance. It also acknowledged that the Board
of Appeals might believe that a variance was also needed for this
operation, and stated that regardless of the type of determination
necessary it could satisfy all necessary criteria for its intended
use.
The Board of Appeals found, and I agree, that the batching of
concrete is not merely the processing and treating of raw
materials, but rather a manufacturing process involving the mixture
of sand and gravel with cement and water to produce concrete. It
involves the transformation of raw materials into something
different, carrying a new name and nature and adapted to a new use
28
JUN 61990
g
CITY CLERKS OFFC:
by forces directed by a human mind. Cf. Southeastern Sand and
Gravel, Inc. v. Commissioner of Revenue, 384 Mass. 794, 429 N.E.2nd
714 (1981). That is "manufacturing" as the term is commonly
understood.
The Northampton zoning ordinance does not permit manufacturing
in an RR zoning district, with or without a special permit.
Section 5.2, Page 5-12 does permit manufacturing in the City's
industrial zones (in a GI zone as a matter of right and in an SI
zone with a special permit), but authorization to put property
located in an RR zone to a manufacturing use would require a
variance. Although the plaintiff's application did request a
special permit under the provisions of Section 5.2, Page 5-12, it
did not specifically request a variance from those provisions.
The plaintiff now takes the position that it obtained a
constructive grant of a variance to erect and operate a batching
plant on the property when the Board of Appeals failed to act upon
its application within 100 days of the date of its filing. The
Board of Appeals does not concede that that is true. The Board
takes the position that because a variance for a batching plant was
not specifically requested in the application (unlike the request
for a variance to build a maintenance building), that application
cannot form the basis -for a constructive grant of such a variance.
The plaintiff argues that in the Statement attached to its
application it made it clear that a variance was being sought asp
an alternative remedy if needed, and that such an alternative
prayer should suffice.
lr l!
29 ddd r"
JUN 1990 �J
a CITY CLERKS OFFICE
° e -
I am of the opinion that there is merit in the Board's
position. Before constructive relief is granted by default, it
should be clear what relief is being demanded. To form the basis
of a constructive grant of permission to use property in a manner
not permitted as of right by a zoning ordinance, an application
should unequivocally state not only the nature of the use but also
the nature of the remedy that is being sought. The standards for
a variance, a special permit and a finding are all different, so
the Board should be notified of the standard it is being asked to
apply as well as of the use the petitioner seeks before time begins
to run against it for failing to act. That is particularly true
in view of the fact that the time limitation for the Board to act
upon a petition for a special permit is different from the time it
has to act upon a petition for a variance or a request for a
finding. (See Section II above).
As in the case of the requested variance for a maintenance
building, there was no evidence presented at the trial before me
which would justify a finding that owing to circumstances relating
to the soil conditions, shape or topography of the plaintiff's land
and especially affecting that land but not affecting generally the
zoning district in which it is located, inability to erect and
operate a batching plant would involve substantial hardship,
financial or otherwise, to the plaintiff within the meaning of
G.L.c. 40A, § 10.
The Board of Appeals did not exceed its authority by denying
the plaintiff a variance to construct such a plant.
30 '.i�
JUIN 61990
CITY CLERKS OFFICE
{NORTHAMPTON MASS. G1O6�
I
V. The Dimensional Variance.
In its original application the plaintiff specifically
requested a variance from the provisions of Section 6.7 on page 6-
7 of the ordinance, the dimensional regulations for structures in
RR zoning districts. In the statement attached to the application
the plaintiff explained that such a variance would be required
because the silo for that proposed batching plant would be 50 to
60 feet tall, and the ordinance limits the height of structures in
RR zones to 35 feet (20 feet for accessory buildings).
The plaintiff contends and the Board concedes that the
dimensional variance was constructively granted when the Board
failed to act on the application within 100 days. The point is
academic in view of the fact that the plaintiff has been denied the
use variance that it requires in order to construct a batching
plant, so no silo will be required or permitted, but I am not
inclined to rule that a variance has actually been granted,
constructively or otherwise. Insofar as the application requested
a dimensional variance, it pre -supposed that construction of a
batching plant would be permitted. Such permission was therefore
a condition precedent to the granting of the dimensional variance,
so when the condition failed the request became a nullity. This
is not the type of situation in which the legislature intended the
constructive grant provisions of the statute to apply. Cf. PaguiiT
v. Board of Appeals of Barnstable, 27 Mass. App. Ct. 577 (1989),
Nasca v. Board of Appeals of Medway, 27 Mass. App. Ct. 47 (1989).
31
UN
6 1990
~ .. .L: ,
c
VI. The Request for Site Plan Approval.
The plaintiff contends that the Board of Appeals erred by
refusing to approve the site plan that was filed by it at some time
after November 4, 1988 and attached to its application of January
4, 1989. As indicated above, that site plan was not prepared by
a registered Architect, Landscape Architect or Professional
Engineer as required by the ordinance. That deficiency, by itself,
was ample reason for the Board to withhold its approval.
The plaintiff argues that the requirement of preparation by
a registered Architect, Landscape Architect or Professional
Engineer could be waived by the Planning Board. I do not believe
that that is a correct interpretation of the ordinance. The
ordinance does provide that the Planning Board may, upon request
and at its discretion, waive any of the "required information" that
the ordinance specifies should be included on the site plan, but
it does not provide that the Planning Board may waive the
qualifications of the preparer of the plan. In any event, there
was no evidence that the Planning Board did waive those require-
ments in this case or that it was ever asked to do so.
VII. The Request for a Sian Variance
The plaintiff's January 4, 1989 application also requested a
variance to erect a sign to identify its proposed business location'-
on
ocation`on Turkey Hill Road. Since the plaintiff is being effectively
denied permission to move his sand and gravel business to Turkey
32
` JUN 6
1990
CITY CLERKS OFFICIE
WRTHAMPTON, M11ASS, C1C`C,
Dill Road, this request was also properly denied-. -- --- -- -
Furthermore, there was no evidence introduced at the trial as
to precisely where such a sign would be located or that such
location, wherever it might be, would satisfy the requirements of
G.L.c. 40A, § 10 for the issuance of a variance.
VIII. The Plaintiff's Claim of a Statute of Limitations
Defense.
There is one further point that should be addressed. The
Board, in its decision, stated that it found "no evidence that the
quarry operation (presently being conducted on the premises) is a
lawful pre-existing nonconforming use." I concur in that
observation. (See Paragraph I above).
The plaintiff has countered with an argument to the effect
that its use of the premises for quarrying purposes is protected
by the provisions of G.L.c. 40A, § 7, and specifically by that
portion of that section which provides as follows:
... and provided further that no action, criminal or
civil, the effect or purpose of which is to compel the
removal, alteration, or relocation of any structure by
reason of any alleged violation of the provisions of this
chapter, or of any ordinance or by-law adopted
thereunder, or the conditions of any variance or special
permit, shall be maintained, unless such action, suit or
proceeding is commenced... within ten years next after the
commencement of the alleged violation.
The plaintiff's argument is flawed in several respects. Il}
the first place, as noted above, there was no evidence introduced
at the trial as to when the quarry operation was commenced,
so it
33
I' r
JU�NI 6 1990
CIT`( CLERKS OFFICE
NORTHAIMPTON MASS O10oO 3
has not been shown that ten years has elapsed since that date. In
addition, the quoted language applies to the compelled removal,
alteration or relocation of structures, not to the compelled
discontinuance of unauthorized uses; and insofar as the evidence
has revealed there are at present no structures on the Turkey Hill
Road property. Finally, even if the quoted language were
applicable to an effort to enforce that portion of the ordinance
which requires a special permit for the operation of a quarry
operation on the property (Section 5.2), it would not be applicable
to Section 11.1 which regulates the manner in which such an
operation must be carried out and which requires annual permits,
because that statute has been adopted under G.L.c. 40, § 21(17) and
not under Chapter 40A. See Findings, Section III B on pp. 7-10
above, and B me v. Middleborough, 364 Mass. 331, 335. The
plaintiff cannot justify its continued operation of its gravel bank
without compliance with Section 11.1, or its continued operation
of its quarry without compliance with Section 11.1 and the
obtaining of a new special permit authorizing such use.
Accordingly it is ordered that judgment be entered affirming
the decision of the Board of Appeals denying:
(a) the plaintiff's application for a special permit under
the provisions of Section 5.2, Page 5-12, paragraph 2;
(b) the plaintiff's application for a "finding" under the
provisions of Section 9.3(b), Page 9-2 to erect a scale house;
(c) the plaintiff's application for site plan review and
approval under the provisions of Section 10.11; and
34
JU11 6 1990
j
CITY CLERKS OFFICE
NORTHAMPTON, MASS. 01060
(d) the plaintiff's application for a variance from the
provisions of Section 7.3, Page 7-4 permitting it to erect a ground
sign in a residential area.
It is further ordered that such judgment adjudge and declare
as follows:
(1) that the plaintiff's application for a dimensional
variance to permit it to erect a structure with a height exceeding
the dimensional regulations on its Turkey Hill Road property was
not constructively granted because the Zoning Board of Appeals
failed to render a decision within 100 days of the date of filing
of the plaintiff's petition.
(2) that the plaintiff did not obtain a constructive grant
of a use variance to erect either a batching plant or a scale house
on its Turkey Hill Road property.
ENTERED: June 1, 1990
hn P. Moriarty
s,Vice of the Superior
d ' L5
35 �,
=,N6
CITY CLERKS OFFICE
„� P!ORTHAPJ!PTON, MASS. 01060
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss,.
Superior Court
Civil Action No.
VALLEY AGGREGATES CORP.
Plaintiff(s)
VS.
NORTHAMPTON ZONING BOARD OF APPEALS
De en ant s
PRE-TRIAL ORDER
89 1.13
89-113
After a -_)re -tri -1 rrnnfPrence in the above -entitled action held
on April 12,L 1990, before Moriarty, J., the
Court ORDERS:
1. Conciliation on at
Mediation on at
Arbitration on at
Summar T J i 1 on at
2. Trial_ jury on An nC-e K Z6,y711P at ,� 00 � �—`-
3. Assessment of Damages on at
4. Case dismissed/defaulted as to
for failure to appear at pre-trial conference.
5. Case dismissed/defaulted as to
for failure to participate in the preparation of the joint
pre-trial memorandum required under tracking order.
6. Case dismissed/defaulted as to
for failure to file a joint pre-trial memorandum.
7. Case settled, closing papers to be filed within days.
8. For good cause, pre-trial continued to
9. SPECIAL ORDERS:
( b ) a/t-t'# ou-r
(c)
(d)
(e)
By the Court
71(fa�
APR
' °` Assistant Clerk
Entered: April 12, 1990
y
d
a
rt
m
Pi
C
'd
0
0 rn
't3 H
rt* m
0 110
ct
O P.
m rt
r-
cD ' 0
X t:l
0 fD
a n
c
a cn
rr �3'
P• a
0
ro
a
ct
a
n
m
P)
En
O
a
s✓
n
O
cr
n
m
V)
Cr
0
a
Ul
X
0-
G
rt*
O
0
s -n
a
m
n
s—n
O
n
a
0
a
w
n
m
m
m
rt
a
�s
a
m
n
.0
n
a
0
m
Patrick T. Gleason, Esq.
City Solicitor
Kathleen G. Fallon, Esq.
Assistant City Solicitor
Zoning Board of Appeals
City Hall
Northampton, MA.
CITY OF NORTHAMPTON
MASSACHUSETTS
CITY HALL
210 Main Street
Northampton, MA 01060
LEGAL DEPARTMENT
586.6950
February 15, 1989
Re: Application of Jeduron Realty Corporation (Valley Aggregate)
Dear Board Members:
You have requested an analysis of the various requests by Valley
Aggregate which are before you. In response, may I submit the
following.
HISTORY OF PERMIT PROCESS
In 1971 James Wzorek, the prior owner of the Valley
Aggregate site, applied to the ZBA for a "permit under the
provisions of Section 11(1)(5) and a variation(sic) from the
requirements of Section 11".
The application stated that the area to which the
application referred was situated on the south side of Turkey
Hill Road, 3725 feet from the corner of Sylvester Road. In 1971,
this area was a Residential zone. Section 11(1)(5) of the Zoning
Ordinance provided that certain uses including "stone quarrying,
gravel bank, sand bank, (and) removal of top soil" could be
established in a Residence A zone only by permit from the ZBA.
The application was unclear as to what "variation" was actually
requested although Mr. Wzorek stated on the application that it
was "to conduct a related business in conjunction with the gravel
bank". Since Mr. Wzorek was operating a concrete business at
that time, a reasonable assumption is that he wished to locate
that concrete business on the Turkey Hill Road site to be rear
his gravel supply.
In May, 1971, the ZBA granted Mr. Wzorek a permit "for the
purpose of using the premises as a gravel bank in connection with
his concrete business". The 'variation' was denied.
In 1962, the City Council passed Section 29 of Chapter 44.
appears to me that it had, then the Turkey Hill Road site has
been operating illegally since 1975 when the Planning Board
permit expired. Therefore, Valley Aggregate needs a special
permit under Section 5.2(1), page 5-12 just to continue the
gravel bank operation.
The Board should take notice that the original 1971 permit
was only for operations on the south side of Turkey Hill Road.
The application before the Board also is for only the property on
the south side of the road. Gravel removal and quarrying
operations on the applicant's parcel on the north side of the
road have not been authorized by any City board. Nor can any
permit be granted for that location under this application .
NATURE OF REQUESTED RELIEF
Attorney Miranda has indicated that he applied for relief in
the alternative intending that the ZBA would determine the
appropriate action needed. While this method would not
invalidate the application, the ZBA is required to act only on
the relief specifically requested. After reviewing the
application, it appears that Valley Aggregate has requested the
following:
1) A variance from the provisions of *6.7, page 6.7 of the
Zoning Ordinance. Section 6.7 sets forth the
dimensional limitations on accessory structures.
2) A variance from the provisions of *5.2, page 5.16 of
the Zoning Ordinance. This section is part of the
Table of Uses and deals with commercial motor vehicle
maintenance, garaging, and parking facilities. That
section provides that said use is not allowed in an RR
district.
3) A special permit under *5.2, page 5.12 of the Zoning
Ordinance. While the application is not specific as to
which use is requested, the only two uses on that page
which require a special permit in an RR district are:
a) The removal of sand, gravel, etc.,; and
b) The processing and treating of raw materials, etc.
4) A finding under the provisions of *9.3(B) of the Zoning
Ordinance. This section permits the extension,
alteration, or change of a non -conforming use. This
request is the only relief requested which cannot be
defined in a clear manner.
of: The application also states that the proposed work consists
a) Construction of a maintenance building for trucks;
b) A scale house for weighing trucks;
c) A concrete batching plant.
The application does not indicate which request for relief
is related to which aspect of the proposed work. However, a
logical analysis would indicate that the variance requested under
5.2, p. 5-16 was intended for this use. The scale house appears
to me to be an accessory use to the gravel bank use. Therefore,
a special permit for the gravel bank use under *5.2(1), p. 5-12
could be worded to include the scale house. It would also seem
more appropriate to include the maintenance facility as an
accessory use to the gravel bank rather than as a use under a
variance.
Finally, I do not see any relief requested on this
application which would authorize the operation of a concrete
batching plant. It may be that Valley Aggregate intends to argue
that the mixing of concrete is the "processing and treating of
raw materials" for which a special permit is required under
*5.2(2), page 5-12. It is my opinion that a concrete batching
plant does not fall within that use but is rather a manufacturing
use. A manufacturing use would require a variance under *5.2(4),
PAGE 5-12. No such variance was requested.
The request for a finding would be appropriate only if the
gravel bank was a legitimate pre-existing non -conforming use. No
evidence has been presented establishing a gravel bank use on the
south side of Turkey Hill Road prior to 1949, the year in which
such a use became regulated by zoning. Certainly no pre-existing
non -conforming use exists on the north side of Turkey Hill Road.
Therefore, without proof of the use's non -conforming status, the
request for a finding is inappropriate.
REQUIRED ACTION BY THE ZBA
In summary, the requests for variances were granted by
default. (See my letter of November 28, 1988, attached hereto).
Therefore, the applicant may build a building exceeding the
height requirements for accessory structures and may construct a
maintenance building for garaging and servicing vehicles.
The special permit request is before the ZBA. It appears
that the gravel bank use needs a special permit to continue
operation. The ZBA must apply the requirements of *11.1 to the
special permit. The Board may include the construction of a
scale house and a vehicle maintenance building under that special
permit.
The ZBA should specifically find that the concrete batching
plan is not a special permit use under *5.2(2), p. 5-12 but would
require a variance under *5.2(4), p. 5-12. I would recommend
that the Board specifically state in its decision that a special
permit for that use is denied as inappropriate and that no
request for the appropriate variance is before the ZBA.
November 28, 1988
Robert Pascucci, Secretary
Zoning Board of Appeals
City Hall
Northampton, MA.
RE: Application for zoning relief --Valley Aggregates Corp.
Dear Bob:
In its application for zoning relief, Valley Aggregates Corp.
requested two variances, a special permit, and a finding. There
seems to be some confusion as to which of these may have been
constructively granted and/or which are appropriate.
At the present time, Valley is operating a gravel bank/quarry at
the site. That use is a special permit use in that zoning
district. Attorney Miranda has produced a copy of the special
permit granted in 1971 for the use. The gravel bank/quarry
operation is, therefore, a special permit use and not a non-
conforming use.
Valley's intention, as I understand it, is to erect three
structures. The first is a concrete batching plant, a use
requiring a special permit in that zone. The height of the
proposed structure would exceed that allowed by zoning
necessitating the request for one of the variances. The second
structure is a scale house to weigh trucks in connection with the
present use and, possibly, the concrete batching plant. The
third structure is to be used for vehicle storage and
maintenance.
A. Request for variances
Valley requested two variances, one from Section 6.7, page 6.7 of
the zoning ordinance, and the second from Section 5.2, page 5.16.
The first request was for a dimensional variance to permit the
height of the proposed concrete batching building to exceed that
allowed in the ordinance. The second request was for a use
variance to permit Valley to operate a motor vehicle maintenance,
garaging and parking facility on site.
statutory period has passed, these
constructively granted upon completion
statutory procedures by the applicant.
exercised if no appeal is taken.
Since the 100 day
two requests are
of the appropriate
The variances may be
It would seem more appropriate to establish the
maintenance/garaging/parking facility as an accessory use to the
special permit use instead of as a separate use. This would
require modification of the current special permit to include the
accessory use. However, I believe that the structure and the use
could be established under the constructive grant.
B. Request for special permit
Valley also requested a special permit under Section 5.2, page
5.12 of the zoning ordinance. This permit would allow the
concrete batching use.
C. Request for a finding
Valley also requested a finding under Section 9.3(b) of the
zoning ordinance to change, extend or alter a pre-existing non-
conforming use. Since the use on site is apparently a special
permit use and not a non -conforming use, the request is
inappropriate.
Attorney Miranda has made some reference to a constructive grant
of the finding. A finding is not considered a variance but is
treated as a special permit. Many communities do style this type
of relief as authorized by M.G.L. Chapter 40A, Section 6 as a
special permit. Although Northampton does use the term
"finding", the time requirements applicable thereto are those for
a special permit. Therefore, since the time periods have not yet
expired, there has been no constructive grant.
In summary, the applicant may construct a building in excess of
the height limitations in the zoning district and may establish a
vehicle maintenance etc., use under the constructively granted
variances if the variances are not appealed. However, the more
appropriate way to establish the maintenance use is to modify the
existing special permit. The request for a special permit for
the batching plant use is still before the ZBA for action. The
request for the finding is still before the ZBA but should be
denied since it is not applicable.
If you have any questions, please call.
Very truly yours,
Kathleen G. Fallon