Loading...
42-089 (15) �s yyy � hl y 4\ R oV) o U) 14 i ° e v \ a. d Q � ._ �. *0 �� � h,, ; o LLI x CL cr. ._.. ..._ .... ,,,, � ..,. ,,,� _ -ter ...-:f•� ...- �;,,t r J L �n "u�' V o Cl. IL cr Ul uj f i i z , Q © W LU a Q } w V � / ' O cc Ix Ix J Ul co v CO tip 4. tt IJ- 01. 14 r , O • r1 ,. Q 4F _ n w �1 - ` 1 NJ ry QV tn � n� � r \ i f �� �' C. m ✓ N r M J .' \ >( c� "� :,- �'In ���� ♦ i - .. 7\ O h 0c_r VAT- ......._ �,... .....__... ��,rr+��-....��,.y.. ,v�•_j..-.T.Y_._T_.....r...... ....,_..........,._...._.....,.......,....................... --+•'"'_'�"._'------�"'�" Co I r A i VuVA. PW TRUE CO i EgLu tl I� JOHN T. JOYCE, et als vs #y "I"L1V v i . TesFcaii`L7#3, et :335 f� i� F Z_ N_ A L n E C R E E j� The above entitled matter having come on for hearing, air 'having been reported to the Supreme Judicial Court for answer t 4 certain queat ons , and answers to these said questions having ! been received, all parties being represented, by counsel and ass6nt- .rg hereto in writing, .it is ORDERED, ADJUDGED alad DECREE- as follows t� 1 ''1. That the action that the Board C: Appeals of the City of Northampton by its decision filed with }j the City Clerk of the City of Northampton on s( denving a permit to the Board of Health of the City of Northampton, was in excess of its authority and is hereby annulled and it is ordered that a copy- of this j decree shall be filed with the City Clerk and the E� Building inspector of the City of Northampton within thirty (30) days of the day of this decree. "2. That the Zoning Ordinances of the City of u�r orF{c�s Northampton, Ch.44,g11 (e) do permit as a municipal use the operation on of a municipally owned and ,LL1AM H. VIZLCH ' t municipally controlled sanitary landfill site in a ;,;,, M. CALLnfiAlV j residential A zone. `lA •J` ►`i "' No costs or expenses are awarded as part Jkq @6G:0.Tiit 1+ it of this decree . 1I 443 Mnm&rntrr �iJ04 Er. } i , Justice, Massachusetts Supe r,_or Court TRUE U ' , 1i 91 ail l October 2$, 1988 Building Inspeotor City of Northampton Wallace J. Puchalaski municipal Building 212 Main Street Northampton MA. +moo Kff.OF 4WIDNS RE: request for a finding on alterations to landiili Dear_ Mr. Tewhill I am requesting a finding on the activities of the city of Northampton regarding the Northampton land fill: located on parcels 89 and 79 Sheet 42 of the Northampton Assessors map having frontage on Glendale Rd. Northampton. There is no special permit on record as required by; Article IX Section 9. 2 Extensions and Alteration Section 9. 3 Pre- existing Nonconforming Structures -part b, d, e Article X Section 10. 2 Permit Required Section 10. 3 Previously Approved Permits Section 10. 9 Zoning Board of Appeals Section 10. 10 Special Permits Section 10. 11 Site Revive Plan Review/Approval Section 10. 13 Extensions, Modification and Renewals Please refer to the definitions as defined in the coning Ordinance City of Northampton as see in amended version duly 7, 1908. Alteration Page 2 . 2 Essential Facilities Page 2. 6 Heavy Public Use page 2. 8 Municipal Facilities Page 2. 12 Pre-existing Nonconforming lot Page 2 . 14 Use Page 2. 19 Accessory Use Page 2. 19 Nonconforming Use Wage 2. 19 Special Permit Page 2. 17 Special Permit Granting Authority Page 2. 17 Use Subsumable Different Page 2 . 20 I request that all work be' stopped till proper permits and actions have been completed Thank You / _ pce/ recker WA i C 1 0 P Y Landfill It is also my opinion that the 1972 Superior Court decision covers the entire site of the original landfill. By its nature, a landfill use will be occupying different portions of a particular site at different times during the life of the use. This is the inherent nature of that type of use and would have been considered by the judge in making his decision. Therefore, the fact that the active portion of the landfill may be on a different portion of the site now than it was in 1972 or some prior point in time does not create an alteration or expansion of the use. Finally, it is my understanding that the application for the building permit for the leachate treatment facility should be submitted in the late winter. At that time it must be determined if the site plan review ordinance will be applicable. The size of the proposed building, approximately 7000 square feet, will probably trigger the ordinance. It does appear that the changes in the Zoning ordinance will require a special permit in order to establish a landfill on the Willard site. However, it is my understanding that the Willard site will not be used as a sanitary landfill for at least ten years. Therefore, it is not a matter of immediate concern. If you have any questions, please call me. Very truly yours , ath1 C. Fallon U 2 u;.vC fll,' E t.�-?�. it F ---� CITY OF NORTHAMPTON G � MASSACHUSETTS '� e CITY HALL 210 Main Street Northarnptan, MA 01060 LEGAL DEPARTMENT 566-6950 Patrick T. Gleason, Esq. City Solicitor Kathleen G. Fallon, Esq. November 4 , 1988 Assistant City Solicitor 'Edward J. Tewhill, Acting Building Inspector Municipal Building 01060 Northampton, MA, Re_ Zoning compliance--Northampton Sanitary Landfill- Dear Ted A. The Landfill on Glendale Road was waseSnabeffect ince19Q9 44 04 the Code of ordinances as it "= al time; Section 11 {e) of that Chapter allowed d-�� ` �i"}ca "a recreational, or water supply use in a Residence A ups or ^' �- Solicitor -held matter of right. The Board of Health and the Ci-t }hz� section. that a municipal sanitary landfill fell within He� is file for However, the Building inspector had the Board a permit from the a permit under Section it{ii which regulle unjainal use" . Board of Appeals for certain uses including public hearing, the Board of Appeals denied the permit. After a p ,� �„ the Superior court. on June 14 The Board of Health appealed ra -; ent that the landfill use 1972, the Superior Court entered a �udgm was allowed as a matter of right= Since 1969, the Zoning Ordinance has changed' A municipal landfill is now classified as a "h°'�' public use" under the present Zoning ordinance, This use requires a special permit t7tZ7YCil, Therefore, the landfill from the City C is a pre- Therefore, existing, non-conforming use- The construction of the lined trench and the leachate treatment facility should not be considered as a alteration or extension of are the non-conforming LL°e. These municipalityobperatingcaalandf ill mandated by the DEQE by y made in connection with a facility. Suck', changes in technology pre-existing non-conforming use will not be considered an alteration or expansion of that use if they are "ordinarily and reasonable adapted to the original use purpose of thestofutehie change in the original nature and p P •,zndertal�ing" . Berliner v. Feldman, 363 Mass. 767 , at 775 , City of Northampton ,� 4l Massachusetts DEPARTMENT OF BUILDING INSPECTIONS 212 Main street•Municipal Building Northampton,MA 01060 ' 413-587-1240 Building co ssioner unlawfully," it"may have, by that failure, forfeited any right to obtain a future special permit for future landfill expansion of Phases 5/513 which is being proposed." Conclusion: Once you have provided to me the above requested documentation, facts, legal analysis and legal authority to support re-considering your zoning enforcement request letter of March 18, 2008, I will review the same with the City Solicitor. Please let me know if you have any questions. Please put any questions in writing, so I can forward them to the City Solicitor. 16 City of Northampton Massachusetts b DEPARTMENT OF BUILDING INSPECT/DNS fi� a 212 Main Street Municipal Building ^•°` ` Northampton,MA 01060 413-587-1240 Building Commissioner litigation that the parcel may be used, without the necessity of a zoning permit, for sanitary landfill purposes `solely for the benefit of Northampton residents' applied only to the extent the parcel was then not being used for acceptance of waste from other communities." Merely asserting something is "obvious" does not make it so; an explanation is required. It appears that the heart of your argument is an assertion that the landfill has exceeded permissible limits for a nonconforming use, stated as follows in the second pararaph of section No. 4 of your letter (at page 6): Over the years the scope and intensity of the uses of the parcel have significantly changed and constantly expanded, but without compliance with the requirements of§ 350-4.2 of the zoning ordinance to obtain necessary permits which were not originally required when the landfill first commenced operating in 1969; and of§ 350-9.2 to obtain a finding from the Zoning Board of Appeals that the changes are "not more detrimental to the neighborhood." See also the provisions of Mass. G. L. 40A, § 6, relative to the limitations on expansion of nonconforming uses. Rather than asking me as the building commissioner to "See also the provisions of Mass. G. L. 40A, § 6, relative to the limitations on expansion of nonconforming uses," I respectfully request that you set forth your argument, supported by applicable legal authority, explaining the basis for your assertion that the landfill has exceeded "the limitations on expansion of nonconforming uses." Sixteenth: With reference to the third paragraph of section No. 4 of your letter (at page 6),12 please explain, with reference to specific facts and applicable legal authority, exactly why you believe that because "for the past almost twenty years the landfill has been operating 12 The third paragraph of section No.4 of your letter(at page 6)states as follows. In addition,the DPW did not obtain the necessary special permit from the City Council in 1990 when the landfill was converted to a regional solid waste facility, meaning that for the past almost twenty years the landfill has been operating unlawfully and may have, by that failure,forfeited any right to obtain a future special permit for future landfill expansion of Phases 5/5B which is being proposed. Furthermore, and depending upon how the commercial and/or industrial uses of the landfill parcel for generation of electricity under the landfill gas agreement with Ameresco are interpreted under the current zoning ordinance's Table of Use Regulations,the DPW is unlawfully using its property as a power plant(prohibited by current zoning)and/or as a private utility (issuance of a special permit by the Planning Board is required,but has not been obtained). 15 City of Northampton Massachusetts . a _ DEPARTMENT OF BUILDING INSPECTIONS �� 212 Main Street•Municipal Building r e�' , Northampton,MA 01060 413-587-1240 Building Commissioner legal argument supported by applicable legal authority, for the following assertions contained in the first paragragh of section No. 4 of your letter: • The landfill is no longer protected as a prior nonconforming use for zoning pruposes; • The landfill should have obtained, but improperly did not, a special permit from the City Council in 1990 when it substantially expanded the nature of its operations to become a regional solid waste facility; • To the extent that any continued operation of the landfill is lawful, the landfill must comply with current requirements for local permits and approvals related to expansion of prior nonconforming uses; and • The zoning changes enacted after the landfill went into operation are applicable to the new uses of the landfill property for commercial and industrial purposes. Fifteenth: In the second paragraph of section No. 4 (at page 6) of your letter, you make a number of additional factual assertions.'' My first question concerning this paragraph is what legal authority supports the assertion "It is obvious that the judicial interpretation in the 1972 regional solid waste facility; (c)to the extent any continued operation of the landfill is lawful,the landfill must comply with current requirements for local permits and approvals related to expansion of prior nonconforming uses; and(d)the zoning changes enacted after the landfill went into operation are applicable to the new uses of the landfill property for commercial and industrial purposes. " The second paragraph of section No.4 of your letter(at page 6)states as follows: For example,the DPW has neither applied for,nor received from the Building Commissioner,the necessary zoning permit required by § 350-4.4. It is obvious that the judicial interpretation in the 1972 litigation that the parcel may be used, without the necessity of a zoning permit,for sanitary landfill purposes solely for the benefit of Northampton residents" applied only to the extent the parcel was then not being used for acceptance of waste from other communities. Once the City decided to expand the nature of the landfill-turning it into a regional facility which began to accept waste from outside Northampton and substantially increasing the intensity of the uses of the property-tile landfill ceased being used for authorized municipal purposes solely for the benefit of Northampton residents." Over the years the scope and intensity of the uses of the parcel have significantly changed and constantly expanded,but without compliance with the requirements of§ 350-4.2 of the zoning ordinance to obtain necessary permits which were not originally required when the landfill first commenced operating in 1969; and of § 350-9.2 to obtain a finding from the Zoning Board of Appeals that the changes are "not more detrimental to the neighborhood." See also the provisions of Mass. G.L.40A, § 6, relative to the limitations on expansion of nonconforming uses. 14 City of Northampton Massachusetts ` DEPARTMENT OF BUILDING INSPECTIONS <R ' U10 , 212 Main street•Municipal Building r ,. Northampton,MA 01060 413-587-1240 Building Co issioner In the ast paragraph on page 4 of your letter, you assert that the "landfall gas electric generation facility at the landfill" represents an"unlawful change in the use of the landfill."9 It appears that there has been no "change in the use of the landfill property." Rather, the site continues to be used as a landfill, with the addition of electricity generation as an accessory or incidental use. Please explain, with reference to specific facts and applicable legal authority, why you believe generation of electricity is not an accessory or incidental use at the landfill. Alternatively, if you agree that electricity generation is an accessory or incidental use, please explain, with reference to specific facts and applicable legal authority, why you believe such an accessory or incidental use is unlawful. Fourteenth: In the first paragraph of section No. 4 of your letter (at page 6), you make several factual assertions.10 Please provide specific supporting facts and documentation, together with The final paragraph of page 5 of your letter states as follows: The most recent major new landfill activity-and unlawful change in the use of the landfill property-is use of the parcel for conversion of landfill gas into electricity. In 2005 the DPW entered into a landfill gas purchase agreement with Ameresco Northampton LLC,a Delaware limited liability company, pursuant to which Ameresco obtained the right to construct and operate a landfill gas electric generation facility at the landfill to supply electricity to the grid by conversion of landfill gas produced from decomposing refuse at the landfill and the conversion of that gas into electricity. In accordance with its agreement with the City, Ameresco has constructed a landfill gas electric generation facility at the southern end of the landfill, which facilities consist of a trailer housing a Caterpillar diesel engine generator(with an output capacity of 800 kW) and other equipment including transformers and switchgear,gas blowers, and gas dehydration equipment. The electricity generated by this facility is being sold to,and purchased by,CNE, a local power provider and private electric utility, which is connected to the national electric grid.It is my understanding from public information that this operation started-up in December 2007, and on or about February 25,2008, Ameresco actually began generating electricity for resale to the grid. 10 The first paragraph of section 4 of your letter(at page 6)states as follows: 4. Unlawful uses of the landfill property. The landfill property is presently being used in violation of requirements of the Northampton Zoning Ordinance. Even if the landfill was originally operating in compliance with existing zoning requirements when it first opened in 1969,the subsequent changes in the zoning requirements and the substantial expansion and changes in use of this property when it became a regional landfill, and more recently when it began using a portion of its property for use by a private utility, mean that(a)the landfill is no longer protected as a prior nonconforming use; (b)the landfill should have obtained, but improperly did not, a special permit from the City Council in 1990 when it substantially expanded the nature of its operations to become a 13 City of Northampton , . t Massachusetts DEPARTMENT OF BUILDING INSPECTIONS 212 Main Street e Municipal Building J, b Northampton,MA 01060 413-587-1240 Building Commissioner "This change in use substantially increased the detrimental impacts on the surrounding neighborhood by: [1] increasing the number of refuse trucks coming to and from the landfill, [2] increasing [a] noise and [b] odorimpacts, and [3] increasing the quantity of leachate generated from the landfill [4] which has migrated off-site and [5] caused damage to [a] wetlands, [b] groundwater, and [c] drinking water resources." [Numbers and letters in brackets added as an aid in parting the quoted sentence.] With reference to [1] through [5] above, Please document the following: (A) the facts relied on to support the statements in [1] through [5] above; (B) The facts relied upon to support the statement that these impacts are proximately caused by "This change of use" at the landfill; and (C) (1) the facts relied upon which support the statement that your clients, or their properties, or both, have been detrimentally affected by each such impact; and (2) the facts relied upon which support the nature and extent of the alleged detrimental impact on each of your clients and upon each of their respective properties. Twelfth: Please provide the factual documentation that supports the statement in your letter (page 5, last sentence of the first frill paragraph) that "Approximately 80% of the solid waste now being received at the landfill is commercial waste originating from area businesses, residents using private haulers, and institutions." Thirteenth: the City of Northampton for use of the Northampton Sanitary Regional Landfill. Approximately 80%of the solid waste now being received at the landfill is commercial waste originating from area businesses,residents using private haulers, and institutions. 12 City of Northampton Massachusetts ., + DEPARTMENT OF BUILDING INSPECTIONS 212 Main Street• Municipal Building 'r r 1 Northamptou,NIA (11060 413-587-1240 Building Commission r Novern er, 1988, City Council approval of recommendation of Mayor Musante, approving "a resolution authorizing development of a regional solid waste disposal program." May, 1989, recommendation of the Mayor and the Board of Health, and City Council authorization for"the City to submit a solid waste capacity development application to the Massachusetts Department of Environmental Quality Engineering (now Department of Environmental Protection) seeking approximately $7.5 million of the estimated $8.3 million construction cost of a 16-acrelined landfill at the Glendale Road property to be operated as a regional solid waste disposal facility through cooperative agreements with the neighboring communities of Easthampton, Hatfield, Williamsburg, Huntington, Westhampton, Ashfield, Chesterfield, Worthington, Goshen, Cummington, Plainfield, and Middlefield." "Memoranda of understanding [which] were then entered into between Northampton and adjoining communities" Eleventh: Please provide documentation for the following factual assertions set forth in the paragraph on page 5 of your letter which begins with"Starting in 1990 the landfill began acceptance of refuse in the expansion area known as Phases 1-4, which are four lined landfill cells located to the east of the original unlined landfill in ..." and ends with "Regional Landfill. Approximately 80% of the solid waste now being received at the landfill is commercial waste originating from area businesses, residents using private haulers, and institutions."8 which,includes the following statements s The quoted paragraph on page 5 of your letter states in full as follows: Starting in 1990 the landfill began acceptance of refuse in the expansion area known as Phases 1-4,which are four lined landfill cells located to the east of the original unlined landfill in an area approximately 18 acres in size.This change in use substantially increased the detrimental impacts on the surrounding neighborhood by increasing the number of refuse trucks coming to and from the landfill, increasing noise and odor impacts, and increasing the quantity of leachate generated from the landfill which has migrated off-site and caused damage to wetlands, groundwater, and drinking water resources. Phase I (approximately 5 acres)was constructed in 1989,began accepting waste in 1990,and was finally capped in August 2004. Phase 2 (approximately 6 acres) was constructed in 1993,began accepting waste in 1994,and was finally capped in 2005. Currently the City is using Phase 3 and Phase 4 for landfill disposal: Phase 3, which has a 7-acre footprint,was constructed in 1995 and began accepting waste in 1996; and Phase 4 is a vertical expansion of the landfill created by filling of Phase 3 and the eastern side slope of the original unlined landfill area, which was constructed in 2002 and began accepting waste in 2002. Presently approximately 40 communities have agreements with 11 City of Northampton 6` Massachusetts i f DEPARTMENT OF BUILDING INSPECTIONS 21_Main Street Mu e p 6 Northampton,MA 01060 413-587-1240 Buiiding C mmi.ssi ner which specific parts of each cited document you are relying upon as it relates to the "change of use". Ninth: Please identify the facts relied upon either outside the documents identified or within the documents identified in section No. 3 of your letter, (please identify by Page number or other-clear identifying marker) which support the statements in your letter regarding the "increase in detrimental impacts" identifying which specific parts of each cited document you are relying upon as it relates to the "detrimental impacts on the surrounding neighborhood". Tenth: Please provide complete copies of the following documents, cited in your letter,7 as these are not located in the Building Commissioner's files, and further please identify (by paragraph or page number) all factual statements contained in these documents upon which you rely to support the assertions contained in your letter: February 4, 1988 City Council approval of"recommendation of Mayor Musante, the Board of Health, and the Finance Committee to appropriate $6.9 million to close out the existing landfill area, open a new landfill area, and construct recycling, composition, and resource recovery facilities." 7 Your March 18,2008, letter states as follows in section No. 3, at pages 4-5: Meanwhile, on February 4, 1988 the City Council approved the recommendation of Mayor Musante,the Board of Health, and the Finance Committee to appropriate $6.9 million to close out the existing landfill area, open a new landfill area, and construct recycling, composition, and resource recovery facilities. In November of 1988 the City Council, upon the recommendation of Mayor Musante, approved a resolution authorizing development of a regional solid waste disposal program. In May of 1989, upon the recommendation of the Mayor and the Board of Health,the Northampton City Council authorized the City to submit a solid waste capacity development application to the Massachusetts Department of Environmental Quality Engineering(now Department of Environmental Protection) seeking approximately$7.5 million of the estimated$8.3 million construction cost of a 16-acrelined landfill at the Glendale Road property to be operated as a regional solid waste disposal facility through cooperative agreements with the neighboring communities of Easthampton, Hatfield, Williamsburg, Huntington, Westhampton, Ashfield, Chesterfield, Worthington,Goshen, Cummington,Plainfield, and Middlefield. Memoranda of understanding were then entered into between Northampton and adjoining communities. to City of Northampton fz ` , Massachusetts DEPARTMENTOF BUILDING INSPECTIONS 212 Main SU•ect•Municipal Building Northampton,MA 01060 413-587-1240 Building Commissioner • .lanuary 23,1985 memo from Health Agent to Mayor Musante; • April 1992 Initial site Assessment; Fifth: Please identify the specific factual information (by page number) contained in the December, 2005 Final Environmental Impact Report which support the statements in V letter and upon which you rely in making those statements.6 Sixth: Please identify the statements relied upon in the documents identified in section No. 3 of your letter, (please identify by Page number or other clear identifying marker) which support the assertions in your letter regarding"expansion" of the use of the landfill located at Glendale Road, identifying which specific parts of each cited document you are relying upon as it relates to the history of the expansion. Seventh: Please identify the statements relied upon in the documents identified in section No. 3 of your letter, (please identify by Page number or other clear identifying marker) which support the assertions in your letter regarding the"illegal regional solid waste disposal system"; identifying which specific parts of each cited document you are relying upon as it relates to the "regional solid waste disposal system". >C+ij4hth: Please identify the statements relied upon in the documents identified in section No. 3 of your letter, (please identify by Page number or other clear identifying marker) which support the assertions in your letter regarding the "change of use" and please identify any other community was being brought to the municipal compactor located at the landfill for residential waste transported to the landfill in private vehicles. In addition,Table l of"An Interim Regional Solid Waste Management Plan for the Pioneer Valley" (June 1988),prepared by the Pioneer Valley Solid Waste Action Team (SWAT)for the Mayors of Chicopee, Holyoke,Northampton, Springfield, and Westfield, does not show that the Northampton landfill was then being used as the waste disposal location for any of the 43 separate communities from Agawam to Worthington other than Northampton. 6 See text quoted in the preceding footnote for reference to 2005 Final Environmental Impact Report.. 9 City of Northampton i Massachusetts - ��; DEPARTMENT OF BUILDING INSPECTIONS � 212 Main Sheet•Municipal lWilding Northampton,MA 01060 413-587-1240 Bu11dir,y Commissioner • The 1988 Zoning ordinance referred to on page 3 of your letter.` • The Complaint, Answer and all court documents upon which you rely from the case identified as Rose v. Commissioner of Public Health, 361 Mass 625(1972) Fourth: Please provide the following documents and please identify the specific factual information (by paragraph or other notation) which supports the statements contained in section No. 3 of your letter,5 specifically including but not limited to the following: required issuance of a special permit from the Board of Appeals for use of the property in the SR district as a "Private utility;" and prohibited location of a"Power plant" in all districts. 4 Your March 18,2008, letter states as follows on page 3, concerning the 1988 zoning ordinance: Subsequently the zoning ordinance was further amended to require a special permit from the City Council for a "Heavy Public Use" (including use as a sanitary landfill) in all zoning districts, instead of the "special exemption" previously required. Power plants continued to be prohibited uses in all zoning districts,and a private utility continued to require a special permit from the Zoning Board ofAppeals in all districts. These provisions were in effect in the 1988 version of the zoning ordinance which I have reviewed. The first paragraph of section No. 3 in your March 18,2008 letter states as follows(at pages 3-4): 3. Development and expansion of the landfill. In July of 1969, after the property had been acquired by the City,the City began to use an unlined section of the parcel located on the western end of the property as a sanitary landfill, which portion of the site is variously described as being between 20 and 22 acres in size.[FOOTNOTE 2]This area was actively used as the Northampton Sanitary Landfill, accepting solid waste from within the municipal boundaries of the City.[FOOTNOTE 3] The original unlined landfill ceased accepting waste in 1990 and was capped in 1995. See Final EIR at page 4-1. FOOTNOTE 2. See, for example,the January 23, 1985 memorandum from Peter J. McErlain, Health Agent,to Mayor David B. Musante("Northampton currently operates the 20 acre Northampton Sanitary Landfill at a 50 acre assigned site on Glendale Road,Northampton.");the Initial Site Assessment Report(April 1992)prepared for the Board of Health by C.T. Male Associates, P.C. (the "unlined landfill covers about 22 acres" of the 52-acre landfill property);the Final Environmental Impact Report for the Northampton Regional Sanitary Landfill Phase 5/513 Expansion Project(Dec.2005), prepared by Dufresne-Henry, Inc., at page 4-1 (the original unlined landfill is a"21-acre area on the west end of the site...."). FOOTNOTE 3.For example,the 1984 Municipal Waste Report prepared by the City's Board of Health, dated February 151 1985, stated that no solid waste from Q City of Northampton Massachusetts 1, DEPARTMENT OF BUILDING INSPECTIONS 3 6 212 Main Street•Municipal Building Northampton,MA 01060 413-587-1240 Building Commissioner • Order of taking (June 23, 1969) acquiring the landfill property, which was acquired by the City on June 23, 1969 by eminent domain for landfill refuse purposes and the Book and Page of the Recorded document; • Appeal of Site Assignment to the Massachusetts Department of Public Health (DPH), which approved the assignment with certain modifications on .tune 10, 1969; • Letter dated June 10, 1969 of the Northampton Board of Health from DPH Commissioner Alfred L. Frechette, • the evidence presented at the public hearing on May 8, 1969 indicating that the proposed site "would be used strictly for the operation of a sanitary landfill for the city of Northampton." • The record of the appeal of the decision (of DPH) to the Hampden Superior Court; The Order of remand by the Hampden Superior Court of the matter to the DPH to take more evidence. • The complete record of the March 10, 1970 DPH affirmed opinion regarding site assignment,with complete opinion regarding additional conditions. • The 1975 Zoning amendment (including both amendment to the text of the ordinance and any zoning map amendment) relied upon indicating that the landfill is now located in a Residence A zoning district 3 Your March 18,2008 letter states as follows(last paragraph of page 2 and first paragraph of page 3): In 1975 the City amended its zoning ordinance to create the Suburban Residence (SR) zoning district and make other zoning changes, including elimination of the Residence A zoning district. The landfill property was located in the SR district, for which the Table of Use Regulations then allowed certain defined "heavy public uses" including a"sanitary landfill" conducted by the City or privately-operated, provided that a "special exemption" was approved by the City Council as required by § 11.6 of the zoning ordinance. By adoption of that amendment,and even though the landfill had previously been operating in conformance with prior zoning requirements,the use of the landfill property became a nonconforming use which, under §§ 9.1 and 9.2 of the 1975 zoning ordinance, could not be extended without first obtaining a"special exemption" for the heavy public use. Furthermore, the Table of Use Regulations adopted with the 1975 zoning ordinance 7 City of Northampton `�.zrrr ttrl Massachusetts ' DEPARTMENT OF BUILDING INSPECTIONS . 212 Main Street•Municipal Building UV"+-,� Northampton,MA 01060 413-587-1240 Building Commissioner "1. History of the site and its assignment for landfill purposes." "2. History of zoning applicable to the site." Third: In my capacity as Commissioner I have not been directly involved in non-zoning landfill permitting or operation. I am primarily involved with the City's current zoning ordinance, rather than the history of how the ordinance has been amended over the years. For these reasons, I request that you provide to me the following documents listed in your letter and any other documents which support the factual and legal assertions made in your letter to me of March 18,2008, including but not limited to the following; • 1969 Board of Health site assignment (voted on January 8 & March 20, 1969); • The Board of Health's written recommendation, presented to the Northampton City Council on March 20, 1969, describing the City's need for a sanitary landfill site to dispose of its "garbage and other refuse from all sources residential, commercial and institutional.." or privately-operated, provided that a "special exemption" was approved by the City Council as required by § 11.6 of the zoning ordinance. By adoption of that amendment,and even though the landfill had previously been operating in conformance with prior zoning requirements,the use of the landfill property became a nonconforming use which, under§§ 9.1 and 9.2 of the 1975 zoning ordinance, could not be extended without first obtaining a "special exemption" for the heavy public use. Furthermore, the Table of Use Regulations adopted with the 1975 zoning ordinance required issuance of a special permit from the Board of Appeals for use ofthe property in the SR district as a"Private utility;" and prohibited location of a "Power plant" in all districts. Subsequently the zoning ordinance was further amended to require a special permit from the City Council for a "Heavy Public Use" (including use as a sanitary landfill)in all zoning districts, instead of the"special exemption" previously required. Power plants continued to be prohibited uses in all zoning districts,and a private utility continued to require a special permit from the Zoning Board ofAppeals in all districts.These provisions were in effect in the 1988 version of the zoning ordinance which I have reviewed. Under current zoning applicable to the SR district,a public or private sanitary landfill, which is defined as a"Heavy Public Use" in § 350-2.1,continues to require a special permit from the City Council as provided by § [Sic; section number was omitted from Attorney Koffs letter; he should supply the omitted citation]; a "Power plant" is not allowed; and a"Private utility" is allowed only by special permit from the Planning Board.Moreover, provisions of§§ 350-9.2 and 350-9.3 require findings from the Zoning Board of Appeals that a prior nonconforming use proposed to be changed, expanded or altered "will not be more detrimental to the neighborhood...." 6 City of Northampton p Massachusetts' DEPARTMENT OF BUILDING INSPECTIONS al Building 212 Main Street• Municipal = P Northampton,NIA 01060 ' 413-587-1240 Building Commissioner • Please identify the factual basis, and provide copies of all cited documentary evidence, for the statements contained in the sections Nos. 1,&2 (at pages 2-3) of your letter,2 delineated as: 2 Sections I &2 of your March 18,2008 letter(at pages 2-3)state as follows: 1. History of the site and its assignment for landfill purposes.The landfill is situated on a parcel of land,approximately 52 acres in size, which is entirely located within the Suburban Residence(SR)Zoning District, as shown on Northampton Assessors and Zoning Map Sheet 42. The parcel is identified by the City of Northampton Assessor's List: 2007 as Parcel 42-089-00 land is known and is presently being used as the City of Northampton Regional Sanitary Landfill. A portion of the parcel at its eastern side is depicted on Zoning Map Sheet 42 as being within the Watershed Protection Overlay District.Prior to the City's acquisition of this parcel in 1969,the property was known as the Omasta Gravel Pit and was used for that purpose. The Northampton Board of Health, acting in accordance with Mass. General Laws Chapter 111, Section 150A, voted on January 8, 1969 and March 20, 1969 to assign the Calduwood Enterprises Inc. Site(Omasta Gravel Pit)for sanitary landfill purposes.[FOOTNOTE I]This site was chosen in order to replace the privately-owned and operated open dump operated by James L. Allen, which was closed after regulations were adopted by the DPH to ban open burning and an order was issued from Hamden Superior Court to close this dump effective July 1,1969.The Board of Health's written recommendation,presented to the Northampton City Council on March 20, 1969, described the City's need for a sanitary landfill site to dispose of its "garbage and other refuse from all sources residential,commercial and institutional.." The parcel was acquired by the City on June 23, 1969 by eminent domain for landfill refuse purposes. FOOTNOTE 1: This site assignment was appealed to the Massachusetts Department of Public Health(DPH),which approved the assignment with certain modifications on June 10, 1969. According to a June 10, 1969 letter to the Northampton Board of Health from DPH Commissioner Alfred L. Frechette,the evidence presented at the public hearing on May 8, 1969 indicated that the proposed site "would be used strictly for the operation of a sanitary landfill for the city of Northampton." That decision was then appealed to the Hampden Superior Court,which remanded the matter to the DPH to take more evidence. On March 10, 1970 the DPH reaffirmed its prior approval of the site assignment,with additional conditions. 2. History of zoning applicable to the site.At the time the parcel was acquired by the City in 1969,the parcel was located within the Residence A zoning district, for which one of the allowable uses was "municipal use," a use not further defined at that time. See Northampton Ordinances,c. 44, § I I(e). After the Northampton Board of Appeals refused to issue a permit for this facility,the Massachusetts Supreme Judicial Court held in Rose v. Commissioner of Public Health, 361 Mass. 625,627-32(1972),that the City was authorized to operate a sanitary landfill "solely for the benefit of the residents ...Of Northampton" as a"municipal use" in the Residence A zoning district allowed by then-existing Section I I(e)of the zoning ordinance without the necessity of a permit. In 1975 the City amended its zoning ordinance to create the Suburban Residence(SR)zoning district and make other zoning changes, including elimination of the Residence A zoning district. The landfill property was located in the SR district,for which the Table of Use Regulations then allowed certain defined "heavy public uses" including a"sanitary landfill" conducted by the City r, City of Northampton Massachusetts � DEPARTMENT OF BUILDING INSPECTIONS 212 Main Strect•Municipal Bijildiog Northampton,MA (11060 413-587-1240 Building Commissioner Exhibit A First: • Supporting facts, legal analysis and citations to legal authority for your statement that the owner and operator of the parcel of land located at 170 Glendale Road, Northampton has failed to obtain the necessary local permits and approvals necessary for operation of the current Northampton Landfill;' • supporting factual information and legal analysis (with citations to legal authority) for the following statements made on page 1 of your letter: • that the landfill owners are required by law to cease accepting for storage, transfer, and/or disposal at the landfill any refuse, solid waste, or other materials which originate from municipal waste collected in any municipality other than the City of Northampton; • that the landfill owners are required by law to discontinue the use of the landfill property for commercial and industrial purposes; • that the landfill owners have not obtained all necessary local permits; and please identify which necessary local permits you believe should be obtained. Second: Your March 18,2008, letter states as follows in the last paragraph on page 1: I am writing on behalf of my clients to request, pursuant to §§ 350-4.3 and 350-4.8 of the Zoning Ordinance of the City of Northampton, Massachusetts,that you issue a notice of violation and order to the Department of Public Works(DPW)of the City of Northampton,as the owner and operator of the parcel of land located at 170 Glendale Road,to cease accepting for storage,transfer,and/or disposal at the landfill any refuse, solid waste,or other materials which originate from municipal waste collected in any municipality other than the City of Northampton and otherwise discontinue the unlawful use of the landfill property, including the unlawful use of the property for commercial and industrial purposes, unless and until all necessary local permits and approvals have been obtained. 4 City of Northampton rr� 7 r ' Massachusetts UV Iz s DEPARTMENT OF BUILDING INSPECTIONS dim 212 Main Strcct 9 Municipal Building ~Jr, Northampton,MA 01060 r' 413-587-1240 Building Commissioner Therefore, the fact that the active portion of the landfill may be on a different portion of the site now than it was in 1972 or some prior point in time does not create an alteration or expansion of the use." The power plant located at the landfill is not a primary use; it is accessory to the use of the landfill and as an accessory use it is allowed. The methane gas to electric turbine is also a technological change and advancement and is considered a best environmental engineering practice to dispose of potentially explosive discharge of methane gas. The enforcement request is denied. You have right of Appeal to the Northampton Zoning Board of Appeals. If you would like me to re-consider your position I would ask that you provide supporting facts, legal analysis and citations to legal authority as out lined in attached exhibit "A" Sincerely, Anthony Patillo Building Commissioner City of Northampton CC: Mayor's Office, City Solicitor J. Sheppard City of Northampton Massachusetts i 4A, DEPARTMENT OF BUILDING INSPECTIONS .. 212 Main Sheet•Municipal Building Northampton,MA 01060 413-587-1240 Building Commissioner Peter Koff, Esq. Page 2 of 2 April 1, 2008 The decision of the SJC Rose vs. Commissioner of Public Health dated April 1972, states the city was authorized to operate a sanitary landfill for the benefit of the residents of Northampton. The decision does not stipulate how the benefits were to be obtained but puts that authority in the hands of the elected public officials. The duly elected public officials deemed it beneficial to use revenue to construct a municipally owned and municipally run state of the art lined sanitary landfill to prevent illegal dumping and burning. The final decree of the State Supreme Judicial Court Equity #13937 Dated June 15, 1972 states ( copy attached)... 1. That the action that the Board of Appeals of the City of Northampton by its decision filed with the City Clerk of the City of Northampton on denying a permit to the Board of Health of the City of Northampton, was in excess of its authority and its hereby annulled and is ordered that a copy of this decree shall be filed with the City Clerk and the Building Inspector of the City of Northampton within thirty (30) days of the day of this decree. 2. That the Zoning Ordinances of the City of Northampton, Ch 44 sec. 11(e) do permit as a municipal use, the operation of a municipally owned and municipally controlled sanitary landfill in a residential A zone. The former city solicitor, Kathleen Fallon, in a letter to then Building Inspector Ted Tewhill dated December 4, 1988 (copy attached), in response to a complaint from citizen (copy attached) that landfill had illegally expanded in violation of zoning stated: "It is also my opinion that the 1972 Superior Court decision covers the entire site of the original landfill. By its nature a landfill use will be occupying different portions of a particular site at different times during the life of the use. This inherent nature of that type of use and would have been considered by the judge in making his decision. City of Northampton Massachusetts ;z { a • ���,, � � DEPARTMENT OF BUILDING INSPECTIONS 212 Main Street•Municipal Building -'' Northampton,MA 01060 413-587-1240 Building Commissioner April 1, 2008 Peter Koff, Esq. Engel & Schultz, LLP 256 Franklin Street, Suite 1801 Boston, MA 02110-2704 Response to Zoning Enforcement Request,Northampton Landfill Dear Attorney Koff: The request for enforcement of alleged zoning violations was received in this office via fax on March 19"' followed by a hard copy delivered by certified mail on March 20t1i of 2008. The parcel of land acquired by the Northampton City Council on June 23, 1969 by eminent domain for use as a sanitary landfill has not expanded its footprint since its inception. The filling in of cells on the assigned site approved by the Board of Health does not constitute an expansion of a non-conforming use. The site was legally conforming by Northampton Zoning in 1969, as it was located in zone residence A. The residence A use at that time allowed premises (land and buildings) used for municipal uses to be allowed by right, a decision upheld by State Supreme Judicial Court June 15, 1972. The 1975 Northampton Zoning 9.1 states that the lawful use of any building or land may be continued, except as otherwise provided by article VI section 6.l- Applicability of Dimensional and Density Regulations which state: "The regulations for each district pertaining to minimum lot area, minimum lot width, minimum lot depth, minimum front yard depth, minimum side yard width, minimum rear yard depth, maximum height of buildings, maximum number of stories, maximum building area maximum floor area ratio, and minimum open space shall be as specified in this article and as set forth in the table of dimensional and density regulations". The landfill is not in violation of the 1975 Zoning. 1 03/19/08 WED 07:03 FAX 9510048 ENGEL&SCHULTZ (71001 ENGEL & SCHULTZs LLP At`c,wrm-ys at Low 265 Franklin Street, Suite 1801 _ Boston,MA 02110 � Phone: (617)961-9980 Facsimile:(617)961-0048 � F FACSL COQ SHEET DATE: ' FAX NO.: 3 55 f j,7--7 z FROM: e 41- • /Off; RE: r-e- Ale- U MESSAGE: A. f Lt� ne'amt•l 4- �NUMBER OF PAGES (includiding cover�7et V HIGH PRIORITY -- DELIVER ASAP M CONFIDENTIAL--ADDRESSEE ONLY (X) CONFIDENTIAXWYNOTE: The information contained in thisfacsimile message a legally privileged and confidential information intended only for the use of the individual or entity named above. Xf the reader of this message is not the intended rer�pient,)ou are hereby notified that any rticcemination.distribution or copy of this fax is strictly prohibited. If you have received this fax in error,please immediatety notify the Sender at(617)931-9980 and destroy the original message. Anthony Patillo,Building Commissioner March 18, 2008 Page Seven Therefore,it is appropriate and necessary for you,in your capacity as the zoning enforcement officer for the City of Northampton, and consistent with your responsibilities under§§ 350-4.3 and 350-4.8 of the zoning ordinance, to enforce the zoning ordinance requirements by issuance of the appropriate notice of violation and order to the DPW. I will be pleased to answer any questions you may have in regard to this matter. Sincerely yours, Peter L. Koff Anthony Patillo,Building Commissioner March 18,2008 Page Six 4. Unlawful uses of the landfill property. The landfill property is presently being used in violation of requirements of the Northampton Zoning Ordinance. Even if the landfill was originally operating in compliance with existing zoning requirements when it first opened in 1969, the subsequent changes in the zoning requirements and the substantial expansion and changes in use of this property when it became a regional landfill,and more recently when it began using a portion of its property for use by a private utility,mean that(a)the landfill is no longer protected as a prior nonconforming use; (b)the landfill should have obtained,but improperly did not, a special permit from the City Council in 1990 when it substantially expanded the nature of its operations to become a regional solid waste facility;(c)to the extent any continued operation of the landfill is lawful,the landfill must comply with current requirements for local permits and approvals related to expansion of prior nonconforming uses; and (d) the zoning changes enacted after the landfill went into operation are applicable to the new uses of the landfill property for commercial and industrial purposes. For example, the DPW has neither applied for, nor received from the Building Commissioner, the necessary zoning permit required by § 350-4.4. It is obvious that the judicial interpretation in the 1972 litigation that the parcel may be used, without the necessity of a zoning permit,for sanitary landfill purposes"solely for the benefit of Northampton residents"applied only to the extent the parcel was then not being used for acceptance of waste from other communities. Once the City decided to expand the nature of the landfill—turning it into a regional facility which began to accept waste from outside Northampton and substantially increasing the intensity of the uses of the property—the landfill ceased being used for authorized municipal purposes"solely for the benefit of"Northampton Northampton residents." Over the years the scope and intensity of the uses of the parcel have significantly changed and constantly expanded, but without compliance with the requirements of§ 350-4.2 of the zoning ordinance to obtain necessary permits which were not originally required when the landfill first commenced operating in 1969;and of§ 350-9.2 to obtain a finding from the Zoning Board of Appeals that the changes are "not more detrimental to the neighborhood." See also the provisions of Mass. G. L. 40A, § 6, relative to the limitations on expansion of nonconforming uses. In addition, the DPW did not obtain the necessary special permit from the City Council in 1990 when the landfill was converted to a regional solid waste facility, meaning that :for the past almost twenty }rears the landfill has been operating unlawfully and may have, by that failure, forfeited any right to obtain a future special permit for future landfill expansion. of Phases 5/513 which is being proposed. Furthermore,and depending upon how the commercial and/or industrial uses of the landfill parcel for generation of electricity under the landfill gas agreement with Ameresco are interpreted under the current zoning ordinance's Table of Use Regulations,the DPW is unlawfully using its property as a power plant(prohibited by current zoning) and/or as a private utility (issuance of a special permit by the Planning Board is required, but has not been obtained). Anthony Patillo,Building Commissioner March 18, 2008 Page Five application to the Massachusetts Department of Environmental Quality Engineering (now Department of Environmental Protection) seeking approximately $7.5 million of the estimated $8.3 million construction cost of a 16-acre lined landfill at the Glendale Road property to be operated as a regional solid waste disposal facility through cooperative agreements with the neighboring communities of Easthampton, Hatfield, Williamsburg, Huntington, Westhampton, Ashfield, Chesterfield, Worthington, Goshen, Cummington, Plainfield, and Middlefield. Memoranda of understanding were then entered into between Northampton and adjoining communities. Starting in 1990 the landfill began acceptance of refuse in the expansion area known as Phases 1-4, which are four lined landfill cells located to the east of the original unlined landfill in an area approximately 18 acres in size. This change in use substantially increased the detrimental impacts on the surrounding neighborhood by increasing the number of refuse trucks coming to and from the landfill, increasing noise and odor impacts, and increasing the quantity of leachate generated from the landfill which has migrated of kite and caused damage to wetlands,groundwater, and drinking water resources. Phase 1 (approximately 5 acres) was constructed in 1989, began accepting waste in 1990, and was finally capped in August 2004. Phase 2 (approximately 6 acres) was constructed in 1993,began accepting waste in 1994,and was finally capped in 2005. Currently the City is using Phase 3 and Phase 4 for landfill disposal:Phase 3,which has a 7-acre footprint,was constructed in 1995 and began accepting waste in 1996; and Phase 4 is a vertical expansion of the landfill created by filling of Phase 3 and the eastern side slope of the original unlined landfill area, which was constructed in 2002 and began accepting waste in 2002. Presently approximately 40 communities have agreements with the City of Northampton for use of the Northampton Sanitary Regional Landfill. Approximately 80% of the solid waste now being received at the landfill is commercial waste originating from area businesses,residents using private haulers,and institutions. The most recent major new landfill activity—and unlawful change in the use of the landfill property — is use of the parcel for conversion of landfill gas into electricity. In 2005 the DPW entered into a landfill gas purchase agreement with Ameresco Northampton LLC,a Delaware limited liability company,pursuant to which Ameresco obtained the right to construct and operate a landfill gas electric generation facility at the landfill to supply electricity to the grid by conversion of landfill gas produced from decomposing refuse at the landfill and the conversion of that gas into electricity. hi accordance with its agreement with the City, Ameresco has constructed a landfill gas electric generation facility at the southern end of the landfill, which facilities consist of a trailer housing a Caterpillar diesel engine generator (with an output capacity of 800 kW) and other equipment including transformers and switchgear,gas blowers,and gas dehydration equipment. The electricity generated by this facility is being sold to,and purchased by,CNE,a local power provider and private electric utility,which is connected to the national electric grid. It is my understanding from public information that this operation started-up in December 2007, and on or about February 25, 2008, Ameresco actually began generating electricity for resale to the grid. Anthony Patillo,Building Commissioner March 18, 2008 Page Four accepting solid waste from within the municipal boundaries of the City.' The original unlined landfill ceased accepting waste in 1990 and was capped in 1995. See Final EIR at page 4-1. Starting in about 1983 —in recognition of the fact that the unlined landfill was predicted to reach its capacity by the late 1980's—the City began a process of developing recommendations for a long-term solid waste disposal policy for Northampton. The City went forward with plans to expand the landfill into a 12-acre portion of the assigned site where a lined landfill, with leachate collection and treatment facilities,would be constructed. The City then began negotiations with the City of Easthampton about how to construct,and finance, anew lined landfill to serve the combined solid waste needs of both communities. The City of Northampton's Solid Waste Management Task Force recommended in 1985 that the City develop a solid waste disposal plan in concert with the City of Easthampton,but one which would not"give away"valuable landfill space and would show a significant benefit for Northampton. As this discussion was going forward, momentum began to build for developing an even more ambitious"regional approach" to solid waste disposal: in 1987 the Hampshire County Solid Waste"Task Force made specific recommendations for a regional approach to solving the growing problems of lack ofadequate landfill capacity for Northampton and neighboring municipalities;and in June of 1988 the Pioneer Valley Solid Waste Action Team (SWAT) interim solid waste report, prepared as a guide for the cities and towns in Hampshire and Hampden Counties, recommended development of a regional solid waste management system including grouping of towns into "wastesheds" and, in the case of the western hill towns, "begin negotiations with Northampton to determine maximum volumes of waste they will accept in the city's landfill,etc." SWAT report at p. 32. Meanwhile,on February 4, 1988 the City Council approved the recommendation of Mayor Musante, the Board of Health, and the Finance Committee to appropriate$69 million to close out the existing landfill area, open a new landfill area, and construct recycling, composition, and resource recovery facilities. In November of 1988 the City Council,upon the recommendation of Mayor Musante,approved a resolution authorizing development of a regional solid waste disposal program. In May of 1989, upon the recommendation of the Mayor and the Board of Health, the Northampton City Council authorized the City to submit a solid waste capacity development 'For example, the 1984 Municipal Waste Report prepared by the City's Board of Health, dated February 15, 1985, stated that no solid waste from any other community was being brought to the municipal compactor located at the landfill for residential waste transported to the landfill in private vehicles. In addition, Table 1 of"An Interim Regional Solid Waste Management Plan for the Pioneer Valley" (June 1988), prepared by the Pioneer Valley Solid Waste Action Team (SWAT) for the Mayors of Chicopee, IIolyoke,Northampton, Springfield, and Westfield, does not show that the Northampton landfill was then being used as the waste disposal location for any of the 43 separate comnuulities from Agawam to Worthington other than Northampton. Anthony Patillo,Building Commissioner March 18, 2008 Page Three The landfill property was located in the SR district, for which the Table of Use Regulations then allowed certain defined"heavy public uses"including a`-sanitary landfill'conducted by the City or privately-operated, provided that a "special exemption" was approved by the City Council as required by § 11.6 of the zoning ordinance. By adoption of that amendment, and even though the landfill had previously been operating in conformance with prior zoning requirements,the use of the landfill property became a nonconforming use which, under §§ 9.1 and 9.2 of the 1975 zoning ordinance,could not be extended without first obtaining a"special exemption"for the heavy public use. furthermore, the Table of Use Regulations adopted with the 1975 zoning ordinance required issuance of a special permit from the Board of Appeals for use of the property in the SR district as a"Private utility;" and prohibited location of a"Power plant" in all districts. Subsequently the zoning ordinance was further amended to require a special permit from the City Council for a"Heavy Public Use" (including use as a sanitary landfill) in all zoning districts, instead of the "special exemption''previously required. Power plants continued to be prohibited uses in all zoning districts,and a private utility continued to require a special permit from the Zoning Board of Appeals in all districts. These provisions were in effect in the 1988 version of the zoning ordinance which I have reviewed. Under current zoning applicable to the SR district,a public or private sanitary landfill,which is defined as a"Heavy Public Use"in§ 350-2.1,continues to require a special permit from the City Council as provided by §;a"Power plant"is not allowed;and a"Private utility"is allowed only by special permit from the Planning Board. Moreover, provisions of§§ 350-9.2 and 350-9.3 require findings from the Zoning Board of Appeals that a prior nonconforming use proposed to be changed, expanded or altered "will not be more detrimental to the neighborhood...." 3. Development and expansion of the landfill. In July of 1969,after the property had been acquired by the City, the City began to use an unlined section of the parcel located on the western end of the property as a sanitary landfill, which portion of the site is variously described as being between 20 and 22 acres in size.2 This area was actively used as the Northampton Sanitary Landfill, 'See, for example, the January 23, 1985 memorandum from Peter J. McErlain, Health Agent, to Mayor David B. Musante("Northampton currently operates the 20 acre Northampton Sanitary Landfill at a 50 acre assigned site on Glendale Road,Northampton."); the Initial Site Assessment Report (April 1992) prepared for the Board of flealth by C.T. Male Associates, P.C. (the"unlined landfill covers about 22 acres" of the 52-acre landfill property); the Final Environmental Impact Report for the Northampton Regional Sanitary Landfill Phase 5/513 .Expansion Project (Dec. 2005), prepared by Dufresne-Henry, Inc., at page 4-1 (the original unlined landfill is a"21-acre area on the west end of the site...."). Anthony Patillo,Building Commissioner March 18, 2008 Page Two 1. History of the site and its assignment for landfill purposes. The landfill is situated on a parcel of land, approximately 52 acres in size, which is entirely located within the Suburban Residence (SR) Zoning District, as shown on Northampton Assessors and Zoning Map Sheet 42. The parcel is identified by the City of Northampton Assessor's List:2007 as Parcel 42-089-001 and is known and is presently being used as the City of Northampton Regional Sanitary Landfill. A portion of the parcel at its eastern side is depicted on Zoning Map Sheet 42 as being within the Watershed Protection Overlay District. Prior to the City's acquisition of this parcel in 1969, the property was known as the Omasta Gravel Pit and was used for that purpose. The Northampton Board of Health,acting in accordance with Mass. General Laws Chapter 111, Section 150A, voted on January 8, 1969 and March 20, 1969 to assign the Calduwood Enterprises Inc. Site (Omasta Gravel Pit) for sanitary landfill purposes.' This site was chosen in order to replace the privately-owned and operated open dump operated by James L.Allen,which was closed after regulations were adopted by the DPH to ban open burning and an order was issued from Hamden Superior Court to close this dump effective July 1, 1969. The Board of Health's written recommendation, presented to the Northampton City Council on March 20, 1969, described the City's need for a sanitary landfill site to dispose of its"garbage and other refuse from all sources- residential,commercial and institutional....." The parcel was acquired by the City on June 23, 1969 by eminent domain for landfill refuse purposes. 2. History of zoning applicable to the site. At the time the parcel was acquired by the City in 1969, the parcel was located within the Residence A zoning district, for which one of the allowable uses was "municipal use," a use not further defined at that time. See Northampton Ordinances, c. 44, § 11(e). After the Northampton Board of Appeals refused to issue a permit for this facility, the Massachusetts Supreme Judicial Court held in Rose v. Commissioner of Public Health, 361 Mass. 625, 627-32 (1972), that the City was authorized to operate a sanitary landfill "solely for the benefit of the residents ...of Northampton"as a "municipal use"in the Residence A zoning district allowed by then-existing Section 11(e)of the zoning ordinance without the necessity of a permit. In 1975 the City amended its zoning ordinance to create the Suburban Residence(SR)zoning district and make other zoning changes, including elimination of the Residence A zoning district. 'This site assignment was appealed to the Massachusetts Department of Public Health (DPH), which approved the assignment with certain modifications on June 10, 1969. According to a June 10, 1969 letter to the Northampton Board of Health from DPH Commissioner Alfred L. Frechette,the evidence presented at the public hearing on May 8, 1969 indicated that the proposed site"would be used strictly for the operation of a sanitary landfill for the city of Northampton." That decision was then appealed to the Hampden Superior Court, which remanded the matter to the DPH to take more evidence. On March 10, 1970 the DPH reaffirmed its prior approval of the site assignment,with additional conditions. , - ----'-------------- Attorneys atLuvv 265 Franklin Street,Suite l80l Boston, M/\02l%0-27O4 Peter L. 8oT Phone:(017) 951-9980 lruooimu�e' /Gl?\ 9�l-0048 Of Counsel . , , F�MuU:ykoffDd00000uut.uet March ]8, 200# AntbnnyI`u1iKo, BoUdingConnxoixsioocc Pucba|aki Municipal Building 2]2 Main Street MA0l00U Ilo: Zoning enforcement request Dear Conunissioner patilko: | the following rea�eotsof the��' ofI�odhoocptou:Jo-Anoc8nmsm�o, ^ �Y]} � � Sylvester ' and EUcoTohiasoeu, 90l 9uck M.D. ondC�nnnuo�crc .,�� »y| , ��m��� Hill Road; DVrroBl | r,3blodian}iK; Jomns (;. BrookmoudEiizahetbBmooko, 224Gkeudou Road;Jean Witherell,235Glendale Road;Ron 8aranowski,2l9 Glendale Road;Cathy M.Strader, 209— �-\ ndaloRoad;JeffCbUds,34PineValley Road;StephenChilds,209 Glendale Road;Margaret Brown and Gary Brown, 137 Glendale Road; William M. Bre:uabuu, 220 Glendale Road; Jonn l�5 (����� Road; Z}�bnu l�0 �H�o�al� I�0a�' Peter Bowler and ���baz� � � �uouu�n�x, ^ 8k)uc=` 150 Glendale ; Annie R000, jA Glendale Road; Geraldine Grnnelski, 123Glendale Road;Craig Odgers arid Mimi Odgers,47 Glendale Road;Douglas Townsend and Sbci}uIovonend, 45 G'-- dn}e Road; Paul L. Herbert, l\ BrimsooDrive; Mary Ann Paul and Robert Paul,22Bdnaon Drive;Bill Hamel and Joan Hamel,21 Brisson Drive;JoAnne Bushey,984 ParkHill Road;Christine Lc9- — \{cutor LePage, and ]mzod LePage, 29 Eriouoo Drive- Mark Frost and Kathy Frost, 38 Brisson Drive;Tdoiu Walker and Adcl\e Perry,30BrisuouDrive; Michael S. Fedora and Lillian B. Fedora, 238 Glendale Road;and Roger Benoit and Rosalie Benoit, 942 Park Hill Drive. I ooz writing on behalf ofouyclients t0 request, pursuant to 88 350-4.3 and 350-4.8 of the Zoning Ordinance nf the Citv o[I�odbump(nn, ��aosacbuac�s,that you issue aoodceofviolation Department Public Works(l]PW)nf the City of Northampton,ao the owner and operator of the parcel mf land located ail70 Glendale Road,Vn cease ucce^pti u�for storage,transfer, and/or disposal at the |uodfil| any refuse, solid vvuoto, or other rom1eria}o vvbicb originate from municipal waste collected in any municipality other than the City of Northampton and otherwise discontinue the unlawful use ofthe landfill property,including the unlawful use of the property for commercial and industrial purposes,unless and until all necessary local permits and approvals have been obtained.