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34-004 (14) JGr—LJ—CJCJ IIV1 1C! VJ Lrl.i VVVV1v1 �a1 1 • V1 City of Northampton, Massachusetts Office of Planning and Development City Hatt • 210 Main Street • Northampton, MA 01060• (413)586.6950 $ •Community and Economic Development _ •Conservation • Historic Preservation t • Planning Board •Zoning Board of Appeals Wn -� • Northampton Parking Commission TO: Frank Sienki.ewicz, Acting Building Inspector Sam Brindis, Director, Dept. of Public Works r FROM: Wayne Feiden,, Senior Planner RE: Turkey Hill Road/ Valley Aggregates DATE: April 30, 1991 Z want to clarify the status of Valley Aggregates operation on Turkey Hill Road. After consulting with Kathleen Fallon, I wrote a memo recently stating that the Valley Aggregates file indicated that there was no "pre-existing nonconforming use" or permitted use at their site on Turkey Hill Road. This was based on the lack of permits issued to the landowner and a June, 1990 Superior court conclusion and ruling (Valley Aggregates Corp V. Northampton Zoning Board of Appeals) that "the present uses of the Turkey Hill Road Property are not pre-existing nonconforming uses capable of being extended by a ,'finding. ,"' Since the court decision, the Zoning Board of Appeals heard an appeal of Sarah Creighton on an appeal of the failure of the Building Inspector to act on her complaint which alleged that Valley ,Aggregates operation was in violation of the Zoning Ordinance. Neither Kathleen Fallon nor I were aware of this appeal when I wrote my memo. In their August 29, 1990 decision, the ZBA found that, based on the information presented to the ZBA, Valley Aggregates extraction operations (but not stone crushing) on both sides of Turkey Hill Road are pre-existing nonconforming uses. No permit or finding has been issued to Valley Aggregate, but none is required if the operation is pre--existing nonconforming, as the ZBA determined. If the abutters find additional information to show that the use is not pre-existing nonconforming, they can file with the Building Inspector and potentially appeal his action to the ZBA for a new hearing. If you have any questions, please feel to contact me. cc: Kathleen Fallon Jeffrey Peet, Valley Aggregate, Papermi.11 Rd, Westfield 01085 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 your leen G. allon 6 Valley Aggregates Opinion 1949, 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 1949, 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 1949, 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 1975, 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 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. " 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 1975, 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 4 , 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 40, 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 Aggregates opinion The Building Inspector could issue such a permit only after an application for said permit had been approved by the Planning Board. Section 29 also required the posting of a surety bond and limited the duration of any permit to one year. Renewals of such a permit were to be allowed upon approval of a new application. Section 29 also stated that its provisions "did not apply to any lot which at the time of adoption is legally being used for commercial purposes and said lot shall be considered a non- conforming use" . In 1975, the Zoning Ordinance was again revised. Chapter 44 was specifically repealed by this new enactment. Gravel banks and quarries remained uses allowed only by special permit from the Zoning Board of Appeals in the zoning district in which Valley Aggregates is located. Section 11. 1 of the 1975 Ordinance imposed certain conditions on the grant of any special permit for said uses. The provisions of the 1962 ordinance as to a surety bond and the one year time limitation on any permit were included in Section 11. 1. These provisions remain in effect at this time. The major change in the 1975 enactment was the elimination of the Planning Board' s participation in the permit process. ZONING REQUIREMENTS FOR GRAVEL BANKS, QUARRIES The 1949 ordinance clearly created a prohibition against the establishment of gravel banks and quarries in the subject area as a matter of right. From that time, it would be necessary to receive a permit from the Zoning Board of Appeals to establish such uses. The 1962 enactment of Chapter 44, Section 29, imposed a dual permitting requirement on such uses. Any gravel bank or quarrying operation commencing after 1962 and prior to the passage of the 1975 ordinance revision, permits approved by both the Zoning Board of Appeals and the Planning Board. The ZBA permit was unlimited in time. The Planning Board permit had a maximum time limit of one year, requiring an annual renewal to keep the uses in operation. The 1975 ordinance eliminated the dual permit process for any gravel bank/quarry use commencing after that date. The only permit required was from the Zoning Board of Appeals. However, the ZBA permit became, and still remains, limited to a maximum of one year, requiring annual renewals to allow operations to continue. I have serious doubts as to the legality of the dual permitting process that was created by the 1962 ordinance. My belief is that this was a misguided attempt to establish additional regulations for earth removal uses. Chapter 98 of the Acts of 1949 added Section 21(17) to Chapter 40 of the General Laws. Section 21(17) allows a municipality to regulate earth removal uses by a town by- 2 4 CITY OF NORTHAMPTON MASSACHUSETTS Kathleen G. Fallon, Esq. * �t CITY HALL City Solicitor # 210 Main Street $ Northampton, MA 01060 Joseph M. Cook, Esq. Assistant City Solicitor LAW DEPARTMENT (413)586-6950, ext. 245 FAX: (413) 586-3726 r August 10, 1990 coning 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 1949, the City enacted a comprehensive revision of its ordinances. A new zoning ordinance, Chapter 44, was enacted at that time. The prior, rudimentary zoning ordinance, Chapter 46, enacted in 1929, 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. " Section 10 (h) defined a non- conforming use as a "use which did not comply with this ordinance at the time of its adoption. . . " 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. Mr. Anthony Patillo Page Six September 25, 2000 operation on Turkey Hill Road. Further, for reason that it is apparent that the Valley Aggregates file contained the decision of the Zoning Board of Appeals, the letter from the Northampton Law Department as well as the letter from the Northampton Senior Planner, yet was completely ignored and abrogated by your Cease and Desist letter, it is my opinion that the issuance by you of the Cease and Desist Order was intentionally, maliciously and knowingly unlawful and in excess of your authority as Building Commissioner. Accordingly, in the event said Cease and Desist Order is not immediately withdrawn, Valley Aggregates has instructed me to proceed with an action against you personally for damages done as a result of your order, including, but not limited to, Malicious Prosecution,Civil Rights Violations for Interference with a Constitutional Right(impairment of right to use and enjoy property) and Interference with Contractual and Business Relations. I look forward to your prompt reply. Sincerely, SANTANIELLO, POSNIK& BASILE, P.C. ROBERT M. SANTANIELLO RMS:mm Enclosures cc: Northampton Law Department Northampton Zoning Board of Appeals Northampton Fire Chief Duggan Northampton Mayor Higgins n,, r• �-* Mr. Anthony Patillo Page Five September 25, 2000 subsequent action between the parties, whether on the same claim or a different claim. Because it was not clear from the decision that the issue was actually litigated,the Court held that the earlier decision had no binding effect. This principal is universally upheld and applied by Massachusetts courts. Therefore, the Northampton Law Department's opinion that Judge Moriarty's decision would have no bearing on the Sarah Creighton appeal was quite correct. In the case before Judge Moriarty, the issue of whether Valley Aggregates was operating as a lawful pre-existing nonconforming use was not "actually litigated." This is established by both the Judge's decision, wherein he states that no evidence was presented to him on the issue, as well as examination of the transcript of the hearing, wherein absolutely no evidence regarding the pre-existing nonconforming use was presented by either side. The Sarah Creighton appeal,however,fully litigated the issue of whether Valley Aggregates' operation on Turkey Hill Road was a legal pre-existing nonconforming use. All of the issues presented in your Cease and Desist letter were fully litigated and decided upon by the Zoning Board of Appeals. Valley Aggregates presented numerous affidavits and photographs that established, beyond doubt, that earth removal operations on Turkey Hill Road commenced well before 1949. Therefore, the decision of the 'Zoning Board of Appeals does act as res judicata (i.e., issue preclusion) from being relitigated. As the York Ford. Inc. v. Building Inspector and Zoning Adm'r of Saugus case held, the purpose of res judicata is to "minimize litigation and bring it to an end." Id. "The availability of appellate review of the . . . board decision, [is] a most important factor in the application of the principals of issue preclusion." Id. The parties had the opportunity to appeal the decision of the Northampton Zoning Board of Appeals, and no appeal was taken. As provided above,your Cease and Desist Order is unequivocally unlawful and exceeds your authority as Building Commissioner. The issue of whether Valley Aggregates is operating lawfully as a legal pre-existing nonconforming use was fully litigated before the Zoning Board of Appeals, and is therefore binding under Massachusetts law. No appeal was taken, and therefore said decision was final and cannot be relitigated or abrogated by the Building Commissioner. Further, Judge Moriarty's decision,which was made absent any"actual litigation" of the issue of Valley Aggregates pre-existing non-conforming use, is unequivocally not binding and of no force and effect under Massachusetts law. Accordingly, please be advised that unless said Cease and Desist letter is withdrawn immediately upon receipt of this letter,Valley Aggregates has instructed this office to take any and all necessary legal action to protect its rights, including an appeal to the Zoning Board of Appeals as well as seeking a preliminary injunction to restrain any interference with Valley Aggregates' Mr. Anthony Patillo Page Four September 25, 2000 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 fully 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 that it clearly and definitely articulate all of its reasoning for the decision it will make." (a copy of said letter is enclosed herewith). Massachusetts case law provides that the opinion of Attorney Kathy Fallon was unequivocally the correct one. In Kirker v. Board of Appeals of Raynham, 33 Mass. App. Ct. 111, 596 N.E.2d 398 (1992), the Court held that a judgement ordering landowners to tear down a shed used in connection with their construction business as a nonconforming use did not have res judicata effect on the landowner's action challenging denial of their application to construct a similar shed for use in connection with their farming operation. In that case the town relied on "certain portions of the judge's findings in the first action, indicating that in his view,the shed was designed for use in maintaining construction equipment and was not suitable for farm use." The Appeals Court specifically rejected the town's contention that the Judge's finding barred the landowner from litigating the issue in the present case, because the landowner did not litigate that issue in the first case. In the case of York Ford, Inc v Building Inspector and Zoning Adm'r of Saugus, 38 Mass. App. Ct. 938, 647 N.E.2d 85 (1995), the Court held that an Automobile dealer was not barred, on grounds of issue preclusion, from appealing the Building Inspector's order that the Dealer's parking of"business related" cars on residentially zoned parking lot constituted an illegal use, even though the Zoning Board had previously found that the Dealer's use on the premises was illegal and not a pre-existing non-conforming use. In the Board's original decision,the Dealer had applied to expand his use "pre-existing non-conforming use" to allow additional parking for his business. The Board denied the request, and found that the Dealer's use was illegal and not a valid pre-existing non- conforming use. As a result of that decision,the Building Inspector issued a Cease and Desist Order. The Dealer appealed, and the Town argued that the earlier decision by the Board was binding. The Court held: When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment,the determination is conclusive in a Mr. Anthony Patillo Page Three September 25, 2000 authorizing the expansion of the non-conforming use by the addition of the stone crushing operation. 8. The stone crushing operation is a illegal expansion of the non- conforming use. This decision was duly recorded in the Hampshire County Registry of Deeds, Book 3712, Page 245. It is worth repeating here that the decision specifically set forth that blasting was included in the Board's finding of Valley Aggregates' pre-existing nonconforming uses. Your blatant disregard of this decision exceeds your authority as Building Commissioner,and accordingly your Cease and Desist Order was quite apparently maliciously and illegally issued. As I am sure you are also aware, the decision of the Zoning Board of Appeals was fully accepted by both the Northampton Law Department(Attorney Kathy Fallon) and the Northampton Planning Department(Wayne Feiden). Indeed, by letter dated April 30, 1991 to your predecessor, Frank Sienkiewicz, Acting Building Inspector and Sam Brindis, Director, Dept. of Public Works, from Wayne Feiden, Senior Planner(which letter is no doubt also in your file,yet left unmentioned), specifically gave notice to your Department of Building Inspections that the Zoning Board of Appeals came to a decision regarding the legality of Valley Aggregates operations and that "In their August 29, 1990 decision, the ZBA found that, based on the information presented to the ZBA, Valley Aggregates extraction operations (but not stone crushing) on both sides of Turkey Hill Road are pre-existing nonconforming uses." (emphasis in the original). A copy of said letter is enclosed for your review. Therefore, it is apparent that your supervising authority in zoning matters, the Northampton Zoning Board of Appeals, previously came to a decision regarding the legality of Valley Aggregates operation, and that your Cease and Desist letter is in direct violation of that decision and exceeds your authority as Building Commissioner. Lastly,in support of your Cease and Desist letter you rely on the decision of Judge Moriarty regarding "a civil action against the Northampton Zoning Board of Appeals seeking a declaratory judgment that certain relief sought by Valley Aggregates had been constructively granted (Superior Court Civil Action No. 89-113)." As you are no doubt aware, the Zoning Board of Appeals specifically requested the Law Department for guidance regarding the effect of that decision in the Sarah Creighton appeal. The Law Department,via Attorney Kathy Fallon,advised the Zoning Board of Appeals that: "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 Mr. Anthony Patillo Page Two September 25, 2000 1. The gravel bank/quarrying operation is a pre-existing non- conforming use since it appears that gravel removal began on the site prior to 1949 when a special permit requirement was imposed for gravel bank operations. 2. Between 1971 and 1975 the areas on both the north and south sides of Turkey Hill Road were acquired by James Wzorek who operated a gravel bank on the site. 3. Between 1971 and 1975 the Northampton Zoning Ordinance permitted the expansion of a non-conforming use on the same parcel of land with the permission of the Building Inspector. Between 1975 and 1977 expansion of a non-conforming principal or accessory use was permitted by right on the same parcel of land. No zoning relief from the Board of Appeals was necessary. 4. In 1978,the Zoning Ordinance imposed the requirement of a finding from the Board of Appeals on any expansion of a non- conforming use. 5. Sufficient evidence was presented that gravel removal operations were continuous on the south side of Turkey Hill Road from 1949 until the present. Those operations may have been minimal during a certain period of time between 1960 and 1970,but were still adequate to avoid a presumption of an intent to abandon the gravel bank use. 6. Gravel Bank operations, including blasting, were expanded to the north side of Turkey Hill Road prior to 1978. Therefore,the use acquired the protection of non-conforming status on the north side as well as the south side of Turkey Hill Road. 7. A stone crushing operation,with appropriate machinery, was established on the site in 1978. The owners of the property did not apply to the Board of Appeals for a finding SANTANIELLO, POSNIK & BASILE, P. COUNSELLORS AT LAW 83 STATE STREET SQ THIRD FLOOR U SPRINGFIELD, MASSACHUSETTS 01103 : .., S TEL (413) 781-2130 , ,E ' ROBERT M. SANTANIELLO FAX (413) 732-7515 JAY ALLEN POSNIK SAVINO J. BASILE ROBERT T. SANTANIELLO LINDA A.SCAMMONS September 25, 2000 Mr. Anthony Patillo Building Commissioner City of Northampton 212 Main Street Municipal Building Northampton, MA 01060 Re: Order to Cease and Desist Quarry Operations at Turkey Hill Road Map 34 Parcels 002 & 004 Dated: September 19, 2000 Dear Mr. Patillo: Please be advised that this office represents Valley Aggregates Corporation regarding the above-referenced matter. I have reviewed your Cease and Desist Order and, for the reasons provided below, it is my opinion that said Order is unlawful and exceeds your authority as Building Commissioner. The basis for your Order is that a) while the South Side of Turkey Hill Road was issued a permit in 1971 for earth removal operations it has since expired and therefore Valley Aggregates earth removal operation is unlawful, and b)the North Side of Turkey Hill Road was never issued a permit and therefore said operations are likewise unlawful on that parcel. As you well know,neither of these positions is an accurate reflection of the legality of Valley Aggregates' operation on these sites. In your letter you state that "I have reviewed your file and find the following: . . ." What is conspicuously absent from your review of the file, or mentioned in your Cease and Desist order, is the Decision of the Northampton Zoning Board of Appeals, dated August 29, 1990. This matter involved the appeal of Sarah Creighton, alleging that Valley Aggregates' operation on Turkey Hill Road was illegal for the same reasons set forth in your letter. The Zoning Board of Appeals, the authority upon which appeals of your actions are taken, decided, after a full hearing on all the issues presented in your Cease and Desist Order,that: