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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 The prior, rudimentary zoning ordinance, Chapter 46, enacted in 19291 was repealed.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, 3 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 4 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 5 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.