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LANDFILL zoning Legal Opinion and Staff Report 3 25 10 STAFF REPORT TO: Planning Board FROM: Carolyn Misch APPROVED: Wayne Feiden RE: Mar 25, 2010 Planning Board Meeting DATE: Mar 18, 2010 1. Joint Hearing with Ordinance Committee: Ordinance Amendment to “Remove exceptions for sanitary landfills in Water Supply Protection Districts” Section 350-15.4: Section 350-15.4 currently prohibits landfills, except for “grandfathered” sites that already have DEP site assignment from DEP. The City Glendale Road property is the only site that is so grandfathered. The proponents of the proposed ordinance have stated that their intention is to prohibit any landfill expansion. Outside counsel, zoning expert Mark Bobrowski, ruled that regardless of proposed zoning amendment: 1. The current landfill site (landfill and proposed new cell site) is grandfathered and the zoning change would NOT affect the operations at the landfill nor the option to create a third new cell. 1. IF a landfill expansion reaches certain defined thresholds, a Zoning Board Finding would be required. 2. IF a landfill expansion does not reach these thresholds, no Finding would be required. 3. IF a landfill expansion met Site Plan Approval thresholds, a Site Plan Approval would be required. 4. The landfill, because of its grandfathering, would not require a Special Permit. (See attached zoning opinion and the background memo from Wayne Feiden requesting the opinion.) Staff Recommendation: The existing ordinance is clear that no new landfills are allowed. The proposed ordinance has no affect on the use or continued use or expansion of the landfill. It would, however, create confusion by denying a grandfathering that exists under state statute. Therefore, staff suggests that the Board recommend to Council to deny the amendment in order to avoid confusion about what is allowed. TO: Ned Huntley, PE, Director of Public Works CC: Jim Laurila, PE, City Engineer Elaine Reall, City Solicitor FROM: Wayne Feiden, FAICP, Director of Planning and Development DATE: February 12, 2010 We need to understand the legal ramifications of the proposed zoning amendment relating to landfills in Water Supply Protection Districts. Can DPW engage expert zoning counsel to for a legal opinion on the grandfathering of the current landfill site, as detailed below? Background: In 1969, the city purchased land on Glendale Road to use for a landfill (parcel 1 on the photo above). Parcel 2, just north of the original landfill site was purchased at some later date. Parcel 2, as shown in both photos, contains some aspects of the landfill function including access roads through across and around the landfill and the northerly side slopes of the actual cells on the landfill. Although parcel 2 has not received a permit for the construction of a separate landfill cell, it does contain operations critical to the function of the existing landfill and these two parcels appear operate as one “landfill site”. In 1975 when Northampton’s “modern” zoning was instituted, these city‐owned parcels were zoned Suburban Residential, in which typically single family detached residences are allowed. Some additional non‐residential uses were and are currently allowed by special permit, including “heavy public uses” defined to include landfills. Since the landfill was already in operation there, no special permit was or has been granted for the operations. Current zoning ordinance SR/WSPII In 2007, as part of the agreement with Massachusetts Department of Environmental Protection (DEP) to issue site assignment for the expansion of the existing landfill on Glendale Road, the City Council adopted a Water Supply Protection overlay (WSP II) to protect drinking water supplies serving Easthampton. This WSPII overlay extends over much of the southwest quadrant of Northampton including both parcels shown above. Certain uses are prohibited in the WSP II. In 2007, City Council (with approval by DEP) adopted an exemption to a standard prohibition against landfills for those landfills that receive DEP site assignment within the WSP. In 2008, abutting residences raised the issue of whether expansions of the operation from its inception in the late 1960’s had been done without appropriate permits. The Northampton Zoning Board of Appeals disagreed and the decision was challenged in court, but settled before a final court decision. Under current zoning, we believe that the expansion of the landfill with a new cell to be constructed in compliance with the DEP site assignment would require: 1. Site Plan approval by the Planning Board; and 2. Either a City Council Special Permit for the landfill OR a Zoning Board of Appeals Finding in conformance with section 9.3 for expansion of a pre‐existing non‐conforming use. Proposed Zoning On February 4, 2010, City Council referred out for public hearing the following zoning ordinance amendment submitted by citizen petition. This would eliminate the landfill exemption for sites with grandfathered site assignment within WSP districts. The language is shown below. Legal Questions to be answered If City Council adopts this zoning amendment, a landfill expansion would no longer be eligible for a Special Permit. The existing landfill site would be a pre‐existing non‐conforming for use. Based on Section 9.2 Extension and Alteration of Nonconforming Uses as well as MGL Chapter 40A §6 pre‐existing non‐conforming uses may continue as stipulated: B. A finding, as used in this chapter, requires that the Zoning Board of Appeals determine that a change, expansion or alteration to a preexisting nonconformity will not be substantially more detrimental to the neighborhood than the existing nonconforming nature of the structure, lot and or use. The Zoning Board may impose conditions as part of approving a finding. 9.3 Changes to Non‐Conforming Uses: Legally preexisting nonconforming structures, uses, or lots may be changed, extended or altered as set forth below. If a use is not eligible under one subsection, proceed to the next subsection. A. A preexisting nonconforming structure or use may be changed, extended or altered: With a finding from the Zoning Board of Appeals so long as the change does not involve a sign (see § 350‐7 for signs) and § 350‐9.3A(5) above does not apply and when the expansion extends (vertically or horizontally), but does not increase the nonconforming nature of the property and does not create any new zoning violation (such as further reducing a setback or minimizing open space). Questions: 1. Is Parcel 2 merged with parcel 1 and therefore considered 1 landfill site? 2. If it is one landfill site, would any new construction for a new landfill cell be considered an expansion of operations, but not a new use for the site? 3. If Council were to adopt the newly proposed ordinance amendment would the expansion of the landfill be allowed to move forward through a permit application for a Finding from the Zoning Board of Appeals? If so, would that be the only local permit required?