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LANDFILL zoning Ordinance memo 4 12 10 TO: City Council Ordinance Committee FROM: Wayne Feiden, FAICP, Director of Planning and Development RE: Petition for Zoning Change related to Landfills in Water Supply Protection DATE: March 30, 2010 If City Council votes to pass ordinance, the ordinance with the following amendment is recommended to correct scrivener’s error: §350-15.4 Prohibited uses. The following uses are prohibited in the Water Supply Protection Districts: {no changes to paragraphs A through D and no changes to paragraphs F through O. Amend paragraph E as shown:} E. Sanitary landfills and open dumps, as defined in 310 CMR 19.01 as amended, except for sanitary landfills that have a site assignment permit issued in accordance with 310 CMR 16.00 that predates the adoption of this amendment and a heavy public use special permit from City Council. Specific landfill operations and types of wastes accepted must be in accordance with Massachusetts Department of Environmental Protection Solid Waste Management Facility Regulations (310 CMR 19.00) and policies. Ancillary operations associated with the landfill facility are also acceptable, including various recycling collections, household hazardous waste collection events, leaf and yard waste composting and composting of other organic materials. The proponents of the ordinance (the petitioners) support the ordinance because they want to ensure that there are no additional expansions of the landfill. The City’s independent zoning attorney opined (attached) that the landfill is “grandfathered.” Based on this, the effect of the ordinance would be to take away the option for a Special Permit. If DPW/BPW advanced a new landfill cell, they could either develop the landfill by-right under zoning (if they are below certain thresholds) or obtain a Finding from the Zoning Board. Schedule Date Action Citizen Petition filed 1/22/10 City Clerk certified signatures 1/25/10 Referred from City Council 2/4//10 Refer to EDHLU, Ordinance & Planning Board EDHLU recommendation 2/23/10 Send on without a recommendation Legal notice and posting 3/11 and 3/18/10 Ordinance/Planning Board Public Hearing 3/25/10 Planning Board recommendation 3/25/10 Advance without recommendation (6-0). Motion to recommend in favor failed (3-3) Ordinance Committee recommendation 4/12/2010 City Council not yet scheduled Deadline for final City Council action 6/17/10 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?