Zoning Ordinance VI: Transcript Zon Hearing June 12, 20081
COMMONWEALTH OF MASSACHUSETTS
CITY OF NORTHAMPTON
IN RE: NORTHAMPTON REGIONAL LANDFILL
HEARING BEFORE
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THE NORTHAMPTON ZONING BOARD OF APPEALS
THURSDAY, JUNE 12, 2008
CITY COUNCIL CHAMBERS
NORTHAMPTON, MASSACHUSETTS
COMMENCING AT 5:30 -P.M.
- Sandra A. Deschaine, CSR - - - - -
Registered Professional Reporter
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COMMITTEE MEMBERS_
David Bloomberg, Chair
Sara Northup
Barry Smith
Robert Riddle
Wayne Feiden
ALSO PRESENT:
Janet Sheppard, Esquire
Peter Koff, Esquire
Thomas Mackie, Esquire
Arthur Kreiger, Esquire
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MR. BLOOMBERG: We're going to
2 go ahead and start the meeting of the
3 Northampton Zoning Board of Appeals. My
4 name is David Bloomberg. I'm the chair.
5 And I'll introduce, to my far left Bob
6 Riddle, who's.an alternate member, and the
7 three voting members are Barry Smith, to my
8 left, myself, and Sara Northrup.
9
The first matter we're going to
10 hear is the appeal of the building
11 commissioner on alleged zoning violations of
12 the Northampton Regional Landfill, and
13 seeking discontinuance of the uses.of
14 regional landfill at the property at Map
15 I.D. 42 -089. Notice of this hearing was
16 published on May 29th and June 5th, 2008.
17 Before we start, I think we'll talk a little
18 bit about format and schedule here, before I
19 ask the appellant to present the appeal.
20 First of all, for tonight, we
21 have two time constraints. The first is
22 that we lose this room at seven o'clock to
23 the Planning Board, I assume. So this Board
24 will be moving to Mr.. Feiden's office in
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City Hall, which is a very small room. The
second constraint is that at seven o'clock
we.'re hearing another application on another
unrelated matter, so that gives us a little
less than an hour and a half today to begin
hearing the appeal concerning the landfill.
And I know there have been some
discussions about scheduling, but I
anticipate that what we would be able to
accomplish tonight is to hear the
presentation of the appellant. After that,
we would normally hear from people who would
like to speak in favor of or against or
looking for information, more information
from the appellant, including members of the
Board. And then.the property owner, and
that is the City of Northampton, DPW, would
have an opportunity to present a response.
a I'm assuming we will not have
time.to get that far in less than an hour
L and a half. so we will also need to have a
discussion about the dates that we can
3 continue the open meeting and the hearing
4 to. And as part of that discussion, .
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I
understand there already have been some
conversations about ex the deadline
for the Board of Appeals to render a
decision, which 'I think is now July 31st; in
order to accommodate, as best we can, the
schedules of the Board members, counsel for
both.parties, and other participants in the
hearing.
If at any time, first, you have
trouble hearing me or anyone else, I should
add, let us know, so that we can kind of
tweak the sound system that is here. Anyone
who does speak, please address all comments
to the Chair and not to each other. And
it's very important, especially for the
stenographer who will be recording the
proceedings, that everyone who speaks
identify him or herself by name and address
for the record.
I think.what I might do is ask
the appellant, or the representative of the
appellant, to come forward so that we could
talk a little bit more about the scheduling
issues before the actual presentation is
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given by the appellant..
MR. KOFF: Good evening,
Mr. Bloomberg. For the record, Peter Koff.
I'm representing the appellants in this
matter. And 1 apologize, I didn't address,
apparently, inappropriately to Ms. Northrup,
as the Chair, a hearing memorandum based on
information.
MR. SMITH: May I ask you to
keep your voice up.
MR. KOFF: I'm going to
apologize that you were not the named Chair
on my letter, with the prehearing
memorandum.
MR.-BLOOMBERG: No problem. So
what we're looking at for dates we
typically meet on the second and fourth
Thursday, normally in this room, normally at
5:30 In the summer, we usually -have
meeting a month, in July and August. Two
weeks from tonight is June 26th. I guess
I'll first ask the Board if that will work
for all I of us, so that as a first tar get we
could plan on continuing, after seven o'clock
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tonight, to June 26th.
The second and fourth Thursdays are
not set in stone and even 5:30 is set in
stone. It's more custom. The next second
Thursday is July 10th. And that does not
actually -- I'm out of state that week, and
I know we're going to bump into vacation
schedules. So the following available -- I
should say the fourth Thursday in July is
July 24th. I'm just sort of putting some
dates out here now. I suppose the other
thing we could do is just for now set the
next date so we know when we're coming back,
and maybe turn the conversation to the issue
of extending the deadline for rendering a
decision, because I think.we have some
vacation conflicts in July. I'm looking.at
Attorney Sheppard also.
MS. SHEPPARD: Yes, I have a
conflict on the 24th.
MR. BLOOMBERG: Of July?
MS. SHEPPARD: Yes.
MR. BLOOMBERG: Which might push
us into August, and I understand the parties
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may be amenable, by agreement, to extending
the deadline for the Board's decision. And
if so, I think we have the appropriate
document to be-signed for that purpose.
MS. SHEPPARD: As far as the
City is concerned, we have no problem with
an extension. But as you know, the
extension is between the appellant and the
Board, has to be filed with the City Clerk
before the one days run. So if the
appellant wishes to extend the time, then we
agree that that's fine.
MR. KOFF: Mr. Chairman, on that
point, I have previously told Mr. Feiden,
and tonight I've told the other attorneys,
I'm willing -to do that, and I understand
there's a form, I'm happy to sign that, so
that we have - so the Board has enough time
to make.a decision, and we have a schedule
that makes sense for everybody to do it
efficiently.
MR. BLOOMBERG: Right. Because
the other item that I anticipate is that we
all received your brief today, so certainly
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the property owner has not had an
opportunity to review and respond to it. SC
as part of this schedule, the City -- this
would give the City the. opportunity to
respond to the brief. And what we might do,
if it makes sense to people, is begin the
appellant's argument today, finish up, as
needed, at the next session, allow the
public to speak, then hear the City's
position. And perhaps after that point,
accept a brief from the City, if the City
wants to submit a brief. Does that make
sense?
MR. FEIDEN: Yes.
MR. BLOOMBERG: And we can talk
about additional briefs after all the
testimony has been entered as well.
MR. KOFF: Because I will want
to do one at the close of the hearing.
MS.. SHEPPARD: That schedule is
fine, if you want to set up a schedule right
now. That's fine with us.
MR. BLOOMBERG: Can we agree,
first of all, that two weeks from tonight
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would work to continue the hearing, after we
finish at seven p.m. tonight?
MR. KOFF: Yes
MR. RIDDLE: That's the 26th.
MR. BLOOMBERG: June 26th at
5:30 in this room.
MR. KOFF: How long can that
hearing continue?
MR. BLOOMBERG: That one I think
would be the only matter that we have on
that night. Do we lose the room at seven
o'clock?
MR. FEIDEN: (inaudible)
MR. BLOOMBERG: So we could have
the room, and we.don't have any matters for
that evening. So, hopefully, we 'can get a
lot accomplished that night, in terms of any
time you need to complete your presentation,
time to hear from the public, and for any
i questions from the Board, and then for the
City to begin its presentation, and maybe at
? that point we'll make a determination about
3 the next available date.
MR. MACKIE: I'm Tom Mackie. I
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represent the DPW, and it's a landowner, in
effect. And the only limitation on that
would be submissi.on of briefs before the
26th, because, based on our conversations
with Wayne earlier, we've been outside
trying to schedule all this stuff, that's a
pretty tight schedule, because Wayne would
need it actually well -- before the 19th,
which is a week from today. Is that
correct?
MR. FEIDEN: The goal is if we
have a package a week ahead of time. The
alternative is the e -mail, if they e -mail it
to you and that gives us a.couple more days.
Usually try to give you a hard copy.
MR. BLOOMBERG: And I assume you
want to have your briefly timely submitted
before the next hearing. Is that critical
to you?
MR. MACKIE: I think it would be
preferential to the Board to have our brief
before the next hearing, so you can
understand what we're going to come in with.
That time frame is a little tight for me. I
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won't speak for Mr.. Kreiger, who is
representing Ameresco. But I'll just vouch
here that he has a trial, so he's got a
little bit of a timing issue.
MR. BLOOMBERG: That's the week
I'm away.
MR. KREIGER: Art Kreiger from
Anderson & Kreiger, representing Ameresco.
I don't have a problem with the 26th, and I
don't have a problem submitting papers
before then. I couldn't submit them weeks
before then or twelve days before then. But
if you can take an e -mail three days before
the 26th, or something like that.
MR. BLOOMBERG: That's okay with
me. Is that okay with you?
MS. NORTHRUP: Yes.
MR. BLOOMBERG: I think that's
fine for us.
MR. RIDDLE: Yep.
MR. BLOOMBERG: Attorney Mackie,
> does that --
MR. MACKIE: That works.
MR. BLOOMBERG: So then the next
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hearing would be June 26th, 5:30 p.m. here,
briefs from.the property owner -- would it
be the 23rd, three days before, by e - mail,
and the e -mails are available, I'm sure,
through Mr. Feiden's office.
MR. FEIDEN: Planning Office.
MR. BLOOMBERG: So, in other
words, you just have to e -mail it to Wayne
directly, and then he can circulate it by
e -mail to all of us. Does that work for
people?
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MR. KREIGER: So we have Monday
the 23rd?
MR. BLOOMBERG: Yes.
MS. SHEPPARD: Did you want to
set a time after that when you're going
deliberate?
MR. BLOOMBERG: We can try to.
July 10th is not good. July 24th is not
good for - -
MS. SHEPPARD.: Are you here?
Mr. Mackie and I are out of town.
MR. BLOOMBERG: Okay. So the
next date I got is at least, sticking to
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second and fourth Thursday, is August 14th.
Do we know if that would work?
MS. SHEPPARD: I think that
works for me.
MR. FEIDEN: I will probably be
away.
MR. KOFF: That will not work
for me.
MR. BLOOMBERG: How about August
28th.
MS. SHEPPARD: That's fine.
MR. BLOOMBERG: Does August 28th
work for everyone?
MS. SHEPPARD: So that Mr. Koff
submitted something today saying that it's
acceptable.
MR. BLOOMBERG: Right. We need
the agreement now, I think, is what you're
saying.
MS. SHEPPARD: We need the
agreement now, so it can be filed with.the
City Clerk.
MR. BLOOMBERG: And you have the
document?
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MS. NORTHRUP: Did we end up
with a meeting in July?
MR. BLOOMBERG: No, there's no
meeting -- at least not for this matter. We
might have some other agenda.
MR. FEIDEN: I think we're going
to try and leave those nights free for any
other things that come in, we're going to
get to them in July.
MR. BLOOMBERG: Now, we have to
fill in a date. This is to extend the time
period for filing a decision, so we'll need
time after the 28th of July.
MR. FEIDEN: Right, staff would
like to have ten days.
MR. BLOOMBERG: Sure. 28th of
August. So we need at least ten days after
the 28th of August, and that's assuming
we've heard everything we need, we've closed
the public hearing, and we're ready to.vote.
MR. SMITH: What about September
15th?
MR. BLOOMBERG: September 15th.
MR. SMITH: They can give you
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the brief?
MR. KOFF: The only date we
haven't built in is my brief at the close of
the testimony, before the deliberation.
MR. BLOOMBERG: Right. We can
sort of pick a date, because we have a big
gap. We have the month of July in between.
MR. KOFF: Well, I'm not getting
their briefly until, as I understand it,
July 23rd.
MS. NORTHRUP: June.
MR. KOFF: I'm sorry.
MS. SHEPPARD: - June.
MR. KOFF: I'm sorry. Okay.
And then we're coming back on the 28th
for --
MR. BLOOMBERG: Then we're back
on June 26th, and then after the 26th, the
next time we're back together is August
28th. And that will be -- that will still
actually have to be an open meeting. We
can't close the hearing because we can't
accept your brief if we close the hearing.
So we would anticipate not needing any more
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public input.
MR. KOFF: For that meeting or
hearing, normally you would want me to have
materials to you by when, in terms of August
28th.
MR. BLOOMBERG: The more time
the better.
MR. KOFF: A week before that?
MR. BLOOMBERG: That would be
ideal, but to be fair, we're accepting it
three days before from the other side, so.,
MR. KOFF: As soon as possible,
no later than August 25th.
MR. FEIDEN: Maybe more than a
week before, because other attorneys are
going to want to review your brief have
a chance to supplement their brief, and
staff wants to review them and give --
MR. BLOOMBERG: So if we can
push that date up, for that reason.
MR. KOFF: The problem is, I
leave July 25th for a two -week vacation.
And then I'm away August 14th, 15th, 16th.
MR. BLOOMBERG: It doesn't
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matter to us to move into September, if that
helps..
MR. KOFF: It doesn't matter to
MS. SHEPPARD Okay.
MR. BLOOMBERG: So do we want to
change that August 28th date?
MR. FEIDEN: Do you want to have
briefs due a week before the 2.8th, if you
want to do that, the 28th would be your
final public hearing, or you're hopefully
not taking testimony, you're taking briefs,
and then presumably close the public hearing
on the 28th and deliberate in earlier in
September.
MR. BLOOMBERG: Okay. So.the
suggestion is, to backup, it's DPW's brief,
I guess, technically is the party. DPW's
brief by July 23rd. The next hearing
here -- I'm sorry, June 23rd. The next
hearing here, June 26th at 5:30. The
appellant's rebuttal brief, whatever we're
going to call it, is August 21 for
submission. A hearing August 28th, where we
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anticipate just a hearing on the briefs and
no more public testimony. But then
extending the time period for filing a
decision on the appeal, well into September,
in case we need another hearing date, in
case there's another round of briefs.
That's it. Unless you just want closure on
that.
MR. FEIDEN: No, because
presumably you're getting briefs by August
28th, but you're not really going to be
getti your deliberation. So you're going
to want one or two meetings for
deliberations:
MR. BLOO.MBERG: We're not
talking about meeting on.August 28th?
MR. FEIDEN: Yes.
MR. BLOOMBERG: We are. Okay.
So meeting the 28th. And you're suggesting
we schedule at least one more meeting in.
September now.
MR. FEIDEN: Correct. The 28th
will be wyour final public hearing. Even
though testimony will be done sooner and.
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September 11 has to be one', will be your
first deliberation, and deliberate in one
night.
MR. BLOOMBERG: So all we're
adding to the list is one more meeting on
September 11, for our first deliberation.
MS. SHEPPARD: But this meeting
would still be open so that they can get
briefs, and we can give rebuttal briefs?
MR. BLOOMBERG: I think that's
the idea, that we will keep the meeting
open, so long as anybody wants to file a
brief, within reason.
MS. SHEPPARD: Right. Because
we won't know until we see their brief on.
the 21st, whether or not we're going to want
to.
MR. BLOOMBERG: Right. Mr.
Kreiger.
MR. KREIGER: I may be swimming
upstream. It seems to me a slightly
different sequence, will everybody have
filed opening briefs, the next briefs, it
seems to me, would be after we know the
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hearing is closed, and they can be closed to
post - trial briefs.
MR. BLOOMBERG: Except that I
thought that, technically, we can't accept a
brief if the hearing is closed.
MR. KREIGER: We can accept
briefs before he was, in my view, for us
accepting any new evidence, if you can
receive argument about the --
MR. BLOOMBERG: Even under the
open meeting statute. I thought once we
closed --
MS. SHEPPARD: I'd rather have
you leave it open-and, I mean, whatever the
time frame is, is fine, but I want you to
leave the hearing open so there's no
question that you're within the statute.
MR. BLOOMBERG: And that you
have the ability to file briefs.
MS. SHEPPARD: Yes.
MR. KREIGER: You may just be
looking at a third round of briefs if August
28th contains some more testimony.
MR. BLOOMBERG: That's okay. I
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think we're fine with that. I think we're
just saying to be safe, we'll keep the
meeting open. We won't close the public
hearing.
MR. FEIDEN: I'm not.sure it
makes sense to meet on the 28th. I guess
I'd rather turn it back to Mr. Koff and say,
you want to get his brief.
MR. BLOOMBERG: So the
appellant's brief by the 21st, any rebuttal
brief by the 28th from the City.
MR. MACKIE: That's enough time.
You don't need to meet.
MR. KOFF: I want to join in
this upstream kayak approach. I think the
..suggestion that Mr. K reiger made makes
sense.
MR. BLOOMBERG: So say it again,
then, please.
MR. KOFF: The suggestion would
be that whenever they submit their first
brief and then the hearing is going to go
forward, at the end, after the close of all
testimony and public comments, we would all,
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at the same time, submit our post- hearing
memorandum, on one date. I think that's
what you said.
MR. KREIGER: Can one day is
sequential. My point is it should be after
the date is closed (inaudible).
MS. SHEPPARD: I just want the
hearing, technically, to be open so that we
don't run into a problem with the staff. We
have a hundred day limit, and I just want
the hearing open. You can decide that
you're not going to take testimony and that
you're only going to take briefs after a
certain date. But September 11, when we're
deliberating it, I want to be.open in case
y o u e t e r m i n e t h a t yo — n e=e - d t o h -a -v e m o -r -e -
evidence.
MR. BLOOMBERG: Okay.
MR. FEIDEN: The question for
the parties, then, is, is the City's
attorneys, and the rest of the attorneys,
comfortable that they would be filing briefs
the same time as the appellants, and
therefore you won't be able.to review their
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final brief?
MR. KREIGER: Each side may be a
short rebuttal, it seems to me. But I think
we'll all the conscious of not belaboring
you with paper..
MS. SHEPPARD: I think that was
a yes.
MR..FEIDEN: The final briefs by
all parties, August 21st, and then responses
to those briefs by --
MS. SHEPPARD: September.lst.
MR. FEIDEN: September 1st.
MS. SHEPPARD: And then.you'll
have your hearing on September 11.
MR. BLOOMBERG: And no hearing
on August 28th?
MS. SHEPPARD: No hearing.
MR. BLOOMBERG: So let me try to
read this back again. So backing up to the
beginning, after today. June 23rd is when
the brief will be due from DPW. June 26th
we have a hearing here at 5:30 August 21st
will be the date -- the deadline for
so- called final briefs. September 1st will
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be the deadline for, I'll call them rebuttal
briefs. I don't know. what the term will be.
And then September 11th would be the meeting
where we deliberate.
And now that brings me back to
the date -- you need ten days after we make .
a decision to have time for your staff to
prepare and file the decision. So could we
maybe say extend the time period for filing
a decision to September 30th; does that make
sense?
MR. KOFF: Fine.
MR. BLOOMBERG: I'm going to
plug that date in the agreement.
MR. KOFF: You want me to come
up and sign it.
MR. BLOOMBERG: Yes please. I
guess this calls for a motion for.the Board
to enter into an agreement with the
appellant to extend the time period for
filing a decision on the appeal of the
building inspector's decision relating to
the landfill in this matter.
MR. SMITH: So moved.
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MS. NORTHRUP Second.
MR. BLOOMBERG: All in favor.
It's unanimous. Thank you. Okay.
MR. MACKIE: One more detail.
Would it be advantageous to the Board to
have us do all our filings by e -mail in
order to save the production of.four copies
and packages going back and forth? I
caution, though.. I think there's going to
be probably some significant PDF attachments
to that. It could be pretty big
documents.
MR. BLOOMBERG: One suggestion
would be that anything like a brief that's
on 8 1 /2- by -11, we could take
electronically, but we would ask for hard
copy for oversized documents. Does that
make sense? If that helps.
MR. MACKIE: For the purposes of
serving deadline, if we can e -mail and
overnight all that stuff, it saves
everybody.
MR.
BLOOMBERG:
I think
that's
fine. As long
as we don't
get into
a
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situation. where we're getting the briefs and
the text of the briefs on 8 1/2- by -1,1 that
have attachments referenced that we don't
get for a substantial time later. Of
course, it's in your best interest to get us
the attachments simultaneously or.in a
timely way.
MR. MACKIE: My concern is not
the size of the plan, let's say, it might be
a big engineering plan. It's more just the
number of pages of PDFs files that might be
attached. I can see an exception --
MR. BLOOMBERG: The size of the
file, yeah.
MR. MACKIE: Which, just, I
don't know how everybody's computers
are that they're opening them up on.
Sometimes e -mails you have to break them up.
That's the only down side to that.
MR. SMITH: I just assume you
have voluminous documents done by the City
and distributed to us.
MR. BLOOM13ERG: I think we are
talking about putting that I think for
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oversized documents, that is what we're
talking about, aren.'t we?
MR. FEIDEN: I think it's -- if
all the attachment, we could get a paper
copy. If it's a legal brief, we are writing
our as a - -
MR. MACKIE: Does that work for
everybody?
MR. BLOOMBERG: Okay. Thank
you. I think that's it for procedural
issues. Any questions from the Board for
process? So I think that gives us about an
hour to hear from the appellant.
MR. KOFF: Thank you. Not to
further belabor procedures, but just to
conclude, that I've spoken with the
attorneys for the City and for Ameresco
about our both trying to come to some
factual stipulations, which we would try and
do in our offices in Boston, and then,
perhaps, being able to file a document along
that line with the Board.
So I'm hopeful - that's going to
happen, and therefore I'm not, tonight,
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going to be providing a lot of documents
that are the basis for the factual
statements in my prehearing memorandum,
although most of those did come from Supreme
Judiciary Court decision, but we hope to
cooperate on the facts.
The second thing we hope to pull
together, I've talked to counsel about,
although I'm not sure Ms. Sheppard was.part
of this other conversation, and that is,
come tow an agreement on what provisions of
the ordinance, the zoning ordinance over the
years may be relevant, not to agree on its
meaning or application, necessarily; but
I've got a fair amount of the history, but
it may not be totally complete. I'm going
to share what I have. We're going to try
and meet, at least have an agreement on the
ordinance background that is part of your
decision.
MR. BLOOMBERG: Would it be
helpful if we set a date for submitting a
stipulation of facts, or is that not really
necessary? You'll just work together, and
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won't
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MR. KOFF: It's totally the
Board's pleasure. I'm open to a date. I
think we're going to work, in good faith,
quickly.
MR. BLOOMBERG: I guess for now
we'll just say, from my standpoint, it would
obviously be very helpful to have a
stipulation as to facts. And to the extent
that we can also get an agreed upon
itemization of the sections of the
ordinance, both present and prior, that are
deemed to be relevant by agreement of the
parties. Again, I guess for now we'll just
say yes, that would be helpful.
MR. KOFF: Then the -- I think
the last procedural item to mention is, and
I've suggested this outside as well, that
there be a view by the Board of the property
in question, and the nature of the landfill,
and then I. was asked, should that be part or
am I asking that to be part of a formal
notice hearing, or the Board members
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be asked or suggested that if they haven't
already seen the property, do it on their
own? I'm open to either one.
MR. BLOOMBERG: I guess my
reaction to that is we certainly can go
there on our own, at our convenience, unless
any of the parties feel very strongly that
they would like to have something more
formal happen in terms of -
MR. SMITH: Are there particular
things they want us to look at?
MR. FEIDEN: I watt to be
careful that you're focusing on findings of
the actual issues before you and not
other --
MR. BLOOMBERG: That's a good
point. This is for the benefit of everybody
in the room. What is before this Board in
this proceeding is not the question of
whether there's a detrimental and
environmental impact caused by the landfill.
What's before this Board is the question of
whether the current -- well, very
specifically, whether the building
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inspector, who is the zoning enforcement
officer, aired in denying the request of the
appellant, to find that the landfill is
presently being operated in an illegal
fashion because of the failure to obtain.
permits at an earlier date. So I think it
is. worth remembering that the focus of these
hearings is limited to the matter that's
before this Board and the jurisdiction of
this Board.
The purpose of these hearings is
not to pass judgment on whether the landfill
is detrimental to the environment or even
whether it should or should not be expanded.
I think that's your point, in response to
the question about visiting the site-,.and to
finish a long - winded response; why do you
want us to see the site, I suppose, becomes
the question? And maybe we'll get to that
during the course of presentation.
MR. KOFF: Perhaps we can just
reserve that issue. There's going to be a
presentation with some photographs that show
the site and make the points that we feel
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need to be addressed, and then we can come
back to that. But 'I do want to just clarify
while, perhaps, the overall detriment to the
environment, as I understood the Chair to
suggest, that is not relevant, clearly under
General Laws Chapter 40A, Section 6, one of
the issues is increased detriment to the
neighborhood.
MR. BLOOMBERG: If we were asked
to make a finding, and one of your issues
may be whether that should have happened.
But I don't think that's the same as saying
that's what's happening here and now.
MR. KOFF: Well, we'll come into
that in the argument. And just lastly,
before we start the actual presentation, I
was asked this afternoon late by Wayne to
provide twelve copies of the pre- hearing
memorandum. I have another seven or eight
or so. I, unfortunately, was not in my
office. I can provide these now, if you'd
like.
MR. FEIDEN: I think we printed
copies for them. So I'd like to have copies
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for the public.
MR. KOFF: I have a letter of
today and a memorandum.
MR. FEIDEN: We have it. So
you'll take it for file copies and public
copies. We're fine.
MR. BLOOMBERG: And then I think
there's a question for Kreiger.
MR. KREIGER: Really, a comment,
Chairman. Thank you. I'm sorry to
interrupt the preliminaries here. Your
identification, yours and Mr. Koff's
identification of the issues on the merits
of the case was correct. There is a
threshold issue of anyone standing to bring
an appeal to the ZBA.
As you may know, appellants to
the ZBA need to show standing just as a
plaintiff in court would need to. So at
some point we're going to be addressing the.
neighbor's standing, and that's an issue
that the -- the Board must find that someone
has standing in order to reach the merits,
so it is a threshold issue. That may inform
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your decision later about whether to take a
view. I don't have any strong argument one
way or the other at this point. But I
wanted to make sure that the record reflects
the full scope of the issues before you.
MR. BLOOMBERG: Understood. So
we'll set aside for now question of the
view and certainly all -- everybody has
reserved the rights to make whatever
arguments they think are pertinent.
MR. KOFF: And on the standing
issue, I think we've come in with the
presumption of standing, at least for some
of the appellants, and rather than argue
that now, I'm going to go forward with our
case, because, you know, we've been here too
long on a lot of other things. And I'll
just avoid any further arguments, procedural
or otherwise. I don't think the case needs
a lot of introduction to this Board. I'll
get to that later. I do.want to start our
actual presentation by having a witness, as
one of the appellants, provide testimony. I
don't know if witnesses before this Board
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are sworn or not.
MR. BLOOMBERG: I don't think we
do. That's okay.
MR. KOFF: I'm going to ask, at
this time, for Mr. Fedora to come up, and he
is going to provide some factual information
about the property, its uses that are
relevant to the issues that we are raising,
and Ms. Heisinger is going to be operating
some slides that will be illustrating
Mr. Fedora's testimony.
So why don't you come up and why
don't you introduce yourself, where you live
and then we can just get going.
MR. FEDORA: My name is Michael
Fedora. I live at 238 Glendale Road in
Northampton. The question is, have the
lives of the people who live on Glendale
Road been impacted by the expansion of the
landfill serving roughly forty townships and
a day haulers? The answer to that is of
course it has. Of course they have been
impacted.
This first slide shows the
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topographical map of the Ameresco site
before the landfill was initiated. This is
an aerial view, which was taken a couple of
months ago, showing what the landfill is
currently. This is a Zoning Map Number 42
showing the location of the landfill. This
aerial shot actually shows Glendale Road,
and all the homes that are on Road,
and the close proximity to the landfill.
MR. KOFF: Excuse me, just a
second. If you find it appropriate, you
could go up to the screen and point, if that
would be helpful. I assume the Board --
MR. MACKIE: May I interject a
question? Are copies of these in the record
or available?
MR. KOFF: A copy of these is
being made available, if it hasn't already,
to Wayne, and I have a copy that I can make
available that's on a flash drive that I
have. So I will get you, maybe on "a disk,
if that would be appropriate, I'll give you
a disk when we get back to Boston.
MR. FEDORA: It shows the homes
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that live -- the people that live on
Glendale Road, in close proximity to the
landfill. This would be cell one. This is
a current line landfill. This is a capped
unlined landfill. Our property is here.
Hannan Brook by the stream and the wetland
and the tributary that feeds Hannan Brook.
This is a topographical map showing the
wetland itself. The tributary and Hannan
Brook, and that would be the landfill
property. Just to show you a close
proximity. This is original site map. This
being the capped section right here that we
saw in the photo, and here is a current
section right now that's being filled in at
the moment.
MR. KOFF: Can I ask Mr. Fedora
a question as he goes through?
MR. BLOOMBERG: Sure.
MR. KOFF: Can we go back? Mr.
Fedora, what is the original location where
land filling commenced in 1969?
MR. FEDORA: Would be in this
section right here.
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MR. KOFF: And the one that says
capped unlined?
MR. FEDORA: Capped unlined,
correct.
MR. KOFF: And do you know
approximately when land filling ceased in
that section?
MR. FEDORA: Roughly 1990.
MR. KOFF: Thank you.
MR. FEDORA: This is a graph
that shows the tonnage increase, 1990, and
then it increased expedientially, which also
increased the heavy truck traffic on
Glendale Road, which that in itself impacted
the people who live on Glendale Road. There
are families there, lots of small children.
They have the trucks, the noise, the fumes.
There's a lot -- this shows the tonnage
increase, which shows you also the traffic
increase.
MR. KOFF: Just for the record,
the written record, could you call out the
approximate tonnage amount for 1990 and so
the other years?
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MR. FEDORA: 1990 was under
10,000. And then it jumps up to just about
50,000. 2001, it was over 50,000. 2003, it
was just over 40,000.
MR. KOFF: Thank you.
MR. BLOOMBERG: What's the
source of that information?
MR. KOFF: The source, and I'll
provide that for the record, it's records
that we obtained from the Department of
Environmental Protection.
MR. FEDORA: This is a map
showing the forty plus townships that
actually truck their trash through the
Northampton Landfill. And this is a listing
of those communities. This is an aerial
shot of the current landfill. It shows a
cell tower, over in this.section. There's
an area right here that was a wetland. It
was an active beaver swamp at the time they
wanted to expand this. They drained that
because it came into the footprint of the
landfill. But they're filling this in, and
you can see all the homes that are close by.
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This is where the proposed expansion would
want to be.. Where it shows a lot of water
up that way too. Linda. This shows the
elevation from our pasture. It shows the
elevation of that landfill. And there's a
utility pole here, which is over thirty feet
high. That hill is higher than any
residence on Glendale Road, so any odor that
is off of this landfill, everyone gets it.
If the wind changes, then it hits Route 66,
glendale Road, West Farms, the entire
surrounding community is extremely high.
MR. KOFF: Mr. Fedora, just
going back to that picture. In 1990, did
that large area in the background of the
landfill, was that in existence?
MR. FEDORA: No. This is the
current landfill here, where they're filling
it now. They had to go a vertical
expansion, so it brought it in
They're filling this now to bring it to the
same elevation, I believe.
MR. KOFF: Do you know,
approximately, how much higher in elevation
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the landfill changed from 1990 to today?
MR. FEDORA: I don't have the
exact footage on that, but it is quite
high.
0
MR. KOFF: Would it be more than
a hundred feet?
MR. FEDORA: No, I don't believe
it's more than a hundred feet.
MR. KOFF: More than fifty.
MR. fedora: Yes, I think so.
MR. KOFF: We'll try and get
that figure for you, Mr. Chairman.
MR. BLOOMBERG: Okay.
MR. FEDORA: This is a picture
of a portable candlestick flare. We see
this -from our kitchen window, 24 -7. There's
an excavator to give you a proportion in
size of what that flare is. That excavator
is about twenty feet high. That's a pretty
big flare. We see that quite visibly from
our kitchen window. The equipment is there
to take and start the permanent.flare. We
hear the equipment from this candlestick
flare all the time. We're hoping that the
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new flare, you know, will be quieter than
that one. Hopefully, we.don't see the --
see this flare.
MR. KOFF: On that particular
photograph, was there -- did that structure
exist in 1990?
MR. FEDORA: I'm not sure when
that came on line, but it was quite some
time ago. I'm not sure exactly what date
that was.
MR. KOFF:. Do you get more noise
from.this particular aspect of the landfill
activity since it went to the expansion
area?
MR. FEDORA: Yes. It didn't go
on line until after it was expanded.
MR. KOFF: Okay.
MR..FEDORA: This is a picture
of the Ameresco generator. You can see the
candlestick flares in the background. The
generator, they draw the methane, which
powers the generator, feeding the power into
the grid.. That generator is excessively
loud, excessively loud. It currently is
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only operating during working hours, which
is helpful, but they'.re trying to take steps
to quiet that down. We'll see what happens
with those steps and how it works out. But
that is excessively loud.
MR. KOFF:. Mr.. Fedora, which of
all that equipment that is in the
foreground, if any, was on the landfill as
of 1990, when the original site was closed
and the landfill then moved further to the
east?
MR. FEDORA: None of it.
MR. KOFF: When did that
equipment go in?
MR. FEDORA: This equipment came
in -- they started putting the foundations.
in last fall, and this equipment went.in
during the winter, went on line, I think,
they started that February 13th, I believe.
MR. KOFF: Are you aware whether
the City of Northampton DPW obtained any
zoning permits or.approvals to allow this
equipment to go in?
MR. FEDORA: No, I'm not aware
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of any of it. This is a picture of our
wetland, immediately down gradient of the
landfill. We have tests on that from the
City. It doesn't look very good.
MR. KOFF: Let's go back to -
well, describe that one, and then I'll ask a
couple follow -up questions.
MR. FEDORA: I was just going to
say this is just a larger portion of that
same wetland, and as you can see, there's
nothing green about that.
MR. KOFF: What was the
condition of that wetland would in 1990?
MR. FEDORA: It was pretty
orange, but it's getting progressively
worse.. We'-ve been dealing with this for
quite a long time, over twenty -five years,
and it's progressively worse. This is a
picture of Hannan Brook, right in the
confluence of the wetland into Hannan Brook,
which is showing the iron flocks going into
and going down stream of Hannan Brook. This
is a picture of some of the iron flock right
at Park Hill Road. So that iron flock is
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moving down, and it's past Park Hill Road
now. I think that concludes it.
MR. KOFF: I'd like you to stay
up there, and rather than, at this time, me
making some further argument -type comments
about this testimony, perhaps the Board
would like to ask questions of Mr. Fedora at
this time.
MR. BLOOMBERG: I'm assuming
that DPW would be willing to stipulate that
since 1990 the landfill has been expanded,
and that the expansion of wetland has sort
of ancillary affects, but I guess I won't
try to speak for them. So I'm curious to
hear how this presentation will tie
your argument about the legal issues. But I
do have one question. What is iron flocks?
MR. FEDORA: That's .that orange
sludgy material you saw in the wetland.
MR. BLOOMBERG: And is that
hazardous material?
MR. FEDORA: Well, it's
precipitants. It allows precipitants to
move. It causes them to move.
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MS. NORTHRUP: Can we ask -- I
can say something, but perhaps DPW would
further like to address that.
MR. KOFF: I can call the
appellant who can explain that in a little
more detail.
MR. BLOOMBERG: I'm trying not
to get too much into technical discussion,
and I'm trying to figure out how this is
relevant to the legal issues that are before
us.
MR. KOFF: Well, the legal
issues, if there aren't any --
MR. BLOOMBERG: I thought the
legal issue is whether permits should have
been obtained for the expansion, not
whether -- so how does iron flocks have to
do with that?
MR. KOFF: I suppose --
Mr. Fedora, you can be seated again. One of
the legal issues is the absence of permits,
but• an even. more significant legal issue is,
under the same statute, a nonconforming use
cannot be changed or cannot be substantially
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extended unless certain findings have been
.made by the Zoning Board and certain permits
have been obtained. So all of this
testimony goes to the fact that there have
been significant extensions and changes in
the nature, and the intensity, and in the
impacts of this landfill, and that it is not
permitted under state law to be operated in
the manner, in the intensity and with the
affects it has, because its grandfather
status changed in 1975. And there is other
times, and we're going to attempt, as I said
earlier, to bring together the record of
what those ordinance changes are.
But this landfill, while lawful
in 1969, as was determined in - the Rose - case,
once the ordinances started imposing
additional requirements, which are
summarized in my memorandum, the landfill no
longer was a conforming use originally in
the residence A District and then in the SR
District. And the test is, essentially, how
far beyond permissible limits of expansion
or change in use has the landfill gone and
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has it crossed the line so that it is
operating unlawfully.
There are many cases under
General Laws, Chapter 40A, Section 6, which
interprets changes of use. One of them, and
a fairly recent decision, said that a
hardware store changing into a pharmacy,
that was a substantial extension or change
in its use and it was unlawful, because it
did not have grandfather protection to go
from a hardware store to a pharmacy.
Here we have something far, far
more serious, in change of use, extension of
impacts, extension of nature of use and
that's essentially why all this testimony,
th.rough Fedora_, wen.t in,.to show the
before and after. Once the regional
landfill commenced being -- what the City
was doing, in 1990, the whole nature of this
landfill use changed dramatically. And it's
been done in violation of local law, and
it's in violation of the state statute that
defines the nature of changes and extensions
of a nonconforming use.
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And we will certainly be putting
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together, in a memorandum of legal points,
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why this is a case, and we can cite and
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state cases. A flavor of that is in the
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memorandum. I apologize, but I was not able
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to provide that sooner than this morning,
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but that's the nature of the case.
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Up to 1990, the landfill was
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simply a municipal landfill for the citizens
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of Northampton. It then expanded in its
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focus, for, whatever reason, and I'm not here
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to question the decisions.made by city
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officials in the late 1980s that led to
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we're to become
going a regional landfill.
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That decision was made, and
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there was some tec.hn.ical_testimon.y, as well
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as a former Mayor who had serious
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reservations and concerns, and signed one of
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these appropriation orders because he felt
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he had no choice, since there was a state
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order saying the previous dump, which had
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open burning, had to close down by July 1,
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1969. So the City went into the landfill
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business, and it chose this site, and it was
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a City of Northampton Landfill only for the
City of Northampton's refuse.
In 1990, that use significantly
changed. There are now forty or more
communities who use the landfill.
Hopefully, we will have facts that are
stipulated to about that. And so our
argument boils down to unlawful changes in
use, extensions of use, that have
detrimental impact in the neighborhood, far
in excess of the prior grandfathered use.
And under state law they're unlawful, and
there are various permits as well that have
not been obtained that are required to be
obtained, and there's an open question
whether the landfill will be eligible to - be
granted those permits. But since they
haven't been granted, we can't argue the
validity of them at this point. We can only
say they haven't been obtained.
And there's no excuse why the
landfill is operating today, not in
compliance with the legal requirements of
state law and the local ordinances. There
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was no reason for the building inspector,
and that's the appeal we're on now, to have
denied the request for zoning enforcement.
The reasons he has given in the letter are
not correct legally, and we'll be providing
a further legal analysis of that by the end
of the hearing.
So we think this is a serious
matter, and we think it's something this
Board needs to address, both from a factual
point of view and from a legal point of
view, and the issues are not simple, either
factually, and particularly not legally,
because the nature of the nonconforming use
extensions changed. It isn't simple.
There's a lot of litigation,
however, that I'll be bringing to your
attention. I'm sure counsel for the City
and Ameresco will be interpreting these
cases, as they think they should be
interpreted. And then you're going to have
to make some decisions. And so that's it in
a nutshell. I'm happy to have a witness, if
you'd like, or an appellant, explain about
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the iron flocks, if that would be helpful.
Otherwise, I'm not sure we have more
testimony to present ourselves tonight, and
perhaps members of the public, who may want
to comment, could be invited to do so.
MR. BLOOMBERG: I'll first ask
if any Board members have any questions at
this point.
MR. SMITH: Just as a
clarification. There seemed to be at least
two different arguments that you're giving,
and I'd like to see them sort of separated
out. The.first is, from the Rose decision,
I take it, then, that you interpret for the
sole benefit of the occupants of the City of
Northampton,.to mean that only Northampton
residents can put their trash there. It
would be nice to have that point expanded
upon. I mean, after all, if one could
imagine that getting the forty or
thirty -nine other communities to help us in
running the landfill, would be a benefit to
occupants of the City of Northampton. So
that's one issue.
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The second issue, sort of over,
is the nature of the use and whether it has
been changed and expanded. If you could,
I'd very much like to see, you address the
question of change and the question of
expansion separately, because it seems that
going back to your example of the hardware
store and the pharmacy store, that's clearly
a different use. Here it is accepting
garbage before, it's accepting garbage now,
seems to be the same use. But I agree that
there might be some reasonable concern as to
that being expanded.
So I guess what I'm suggesting
is that, in the brief, I would like to see
that addressed, perhaps more even than the
change of use; which doesn't really seem to
me, now, to be a problem.
MR. BLOOMBERG: If I could add
specifically, I'm curious about the focus on
the presumed expansion of the use, when one,
as Barry says, it's the same use, except for
maybe for the methane and the production of
electricity, setting that aside for a
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minute. And it's the same use on the same
parcel that was taken by the City in.1969.
Within that parcel, they capped the first
unlined section, or cell, and then they
opened new cells.
But I'm curious about this idea
that when the entire, I think -- was it
fifty acres? The entire fifty acres parcel
was taken by the City to use as a dump, the
fact that one cell filled and had to be
capped and a new line cell had to be opened,
isn't that arguably a continuation of the
same use, rather than a expansion of use,
because it's within the same site.. And I'm
not expecting an answer now, but it's an
obvious question._
MR. KOFF: I think both members
of the Board are asking pertinent questions
that go right to the heart of what this
issue is about, and you're going to have to
make a decision. And I certainly intend to
address those in more detail in the briefs,
and it's going to be something where the
facts are going to then be applied, in terms
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of change in use or different uses, and from
the sequence of how the ordinance change,
and until one knows how the ordinance has
evolved, at each point in time and what the
use was at that point, it's going to be, you
know, with that I think you'll have an
easier time understanding the question. I
understand Mr. Smith's point about
separating the two arguments. We'll
certainly be addressing those in a way that
I think the Board can understand.
MR. BLOOMBERG: And then in
terms.of the production of energy there,
what I'm curious to hear about is the
question of whether that constitutes an
-ancillary use that might, under certain
circumstances, be permissible, or a primary
use, or any other relevant interpretation.
MR. KOFF: We're going to have
to brief that on both sides. I'm sure
Mr. Kreiger will be addressing that point in
particular. I think there's an issue as
well, I mean, as part of that whole
question, is, is it a private utility or
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not? Is it a power plant or not? There
aren't definitions of those in the
ordinance.
In the first instance, this
Board is going to have to interpret what
those uses mean under the zoning ordinance?
MS. NORTHRUP: Also addressing
the power plant issue, we have a flare
that's being used to generate electricity.
You'll probably want to address how the
operation of this is somehow not integral
with the operation of a landfill,
specifically mitigating the effects of
methane leaving the site.
MR. KOFF: Yes. Thank you.
MR. BLOOMBERG: So we have
twenty minutes here.
MR. KOFF: Should we defer on
the flocks, and I can do one, or two, or
three - sentence statement.
MR. RIDDLE: Do you know if that
residue is draining from the capped, unlined
section of the landfill or whether it's
coming from the newer lined sections of the
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landfill? I mean, it could be that that has
been moving since 1990, and that it's moving
essentially because it wasn't lined
originally.
MS. NORTHRUP: There's an
assumption here in the testimony that that
is a direct result of'some phase of the
landfill, which would have to be proven
through an environmental study, which may or
may not have been done already. That
stream, that wetland is at the furthest end
of the site from the original unlined
landfill. There may have been an affect,
and there maybe continue to be an affect,
from the unlined landfill on that stream or
elsewhere. But since then lined
landfill phases are highly unlikely to be
affecting that, so is this a residual affect
from the old landfill, has this been looked
at?
In general, my understanding of
iron flocks is that there's some iron
available in the water, and there's a
bacteria that likes that, and it does very
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well, and what you end up seeing is what's
left. Like a lot of dead, little dead --
what do you call them? Microscopic
organisms. They build up like sludge in a
well, in a drinking water well that has a
lot of iron and manganese in them. So
whether or not that's a pre- existing
condition, I assume there's been some
environmental information on that that may
be very pertinent to the neighbors and to
the operational landfill, but is it
pertinent to our zoning. enforcement. We'll
find out
MR. KOFF: In I response, yes,
there has been some information.by the City
and its consultants. I think we take
exception to some of the conclusions. I
think there's contrary opinion about the
source of that flocks. And to the extent to
which that's going to become part of this in
detail or another proceeding, the Board is
probably aware there are -- there may be
other ancillary litigation involving these
questions.
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What the right forum is to get
into that, is something perhaps we, as the
various parties to this larger dispute, can
figure out to do in a way that doesn't
saddle this Board with having to have expert
testimony on each side of the origin of the
flocks. I think that may be getting us far
afield and rather down in one of these other
forums?
MS. NORTHRUP: That's a matter
for EPA.
MR. BLOOMBERG: Or other forums
that you read.
MR. KOFF: So with that, I'm
happy to have the Board entertain other
people, if they want to provide any.
MR. BLOOMBERG: I guess we have
fifteen minutes in this room. So I suppose
we could start, if there are members of the
public who would like to speak.
MR. MACKIE: Thank you,.
Mr. Chairman. I'm just going to ask, for
the record, that Mr. Koff make available
Mr. Fedora or and Mr. (inaudible) at the
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next hearing in. case we have questions.
MR. BLOOMBERG: I was thinking
about that. Even though this isn't a trial
court, it.seems fair and reasonable for
opposing counsel to have the opportunity to
ask questions of Mr. Fedora, if that's
okay.
MR. KOFF: That's fine, and I
assume it will be reciprocal as we go
forward.
MR. BLOOMBERG: Yeah. I think
that seems reasonable.
MR. MACKIE: We're not prepared
to do that tonight.
MR. BLOOMBERG: I guess that
means I should ask Mr. Fedora, if be
available at the next hearing, or were
planning to be at the next hearing?
MR. FEDORA: Yes.
MR. BLOOMBERG: Thank you..
Appreciate that.
MR. BLOOMBERG: Anyone from the
public who would like to address the Board
and in favor of the appellant's position ?.
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And again, if you could, when you come up,
please give us your name and address for the
record.
MS. FEDORA: Hi. My name is
Lillian Fedora, and I live at 238 Glendale
Road. I want to talk about a lot of
different problems over the years, and one
of them -- and I've lived there since 1977.
So we had landfill odors probably for, not
exaggerating, at least twenty years. It's
been a recurrent problem.
In 2003, residents living near
the landfill became ill after exposure to
landfill gases containing chemical
contaminants. They developed respiratory
symptoms, burning eyes, skin rashes. A baby
developed a rash after exposure that covered
its entire body. Parents wouldn't let their
children go outside because the smell was so
bad. That was the same with our children,
as they were growing up. It was terrible.
Residents said that it smelled like a toilet
that had been flushed in their backyard. If
you did not live out there, you have no idea
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how bad it's been. I attended one of. the
meetings, and there is a videotape of
residents describing the terrible odors and
the effects on their health, which I can
make a copy for you. Terrible odors
continue to be a problem from the regional
landfill.
In 2007 and 2008, residents have
had to live with exposure to landfill gas
odors and the chemical contaminants that
come with it. At an odor meeting several
months ago, a member of the Northampton
Board of Health, Dr. Flightman, spoke
publicly about the terrible odors he
experienced when he went to the landfill.
The truck traffic has just been
unbelievable. It started off as a
Northampton Landfill. It was just
Northampton residents. The trucks are just
significant. Not only the forty -four cities
and towns that bring their trash there now,
but from the large trucks, including the
18- wheelers that bring in contaminated soils
to cover the garbage. The larger the
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landfill has.become, the more material is
needed for cover. This has been trucked in
from elsewhere in Massachusetts, including
Boston. And from other states, including
New York and Connecticut.
In addition, other cities and
towns, not on the list of the forty -four,
can bring their waste, including
construction and demolition debris, to the
regional landfill by getting a day pass.
Glendale Road is a residential
Street without sidewalks. Children live on
that street.. There is a day care center at
the end of the street. It's a tight squeeze
to pass these large trucks and many of them
end up going on resident's lawns, I've
driven on Glendale Road. I live on Glendale
Road and see trucks lining up to get in the
landfill, obstructing the view of cars.
There is a serious issue of public safety,
because of the amount and size of truck
traffic on this residential street in
Northampton.
Unfortunately, the regional
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landfill has functioned a (inaudible). This
has resulted in serious detrimental impact
on the residents. I think the reasons for
the permit process we have, in local
government, is to have the granting
authority, whether it be the ZBA, the
Planning Board, or the City Council, hear
about the impacts of a project on residents,
on neighbors, and on the environment, and
then weigh whether it should go forward or
not. It provides checks and balances in the
process, and it gives Northampton residents
a voice in what is happening to them.
MR. BLOOMBERG: Thank you.
MR. MACKIE: I just wanted to
make "a -- ask a .question of Ms. Fedora, and
that is, are you an appellant?
MS. FEDORA: Yes.
MR. BLOOMBERG: Actually, that
would be helpful, anyone who speaks, again,
so the record is clear, if you could
identify if you are one of the -- is it
forty -five or forty -two?
THE FLOOR: Forty -two.
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MR. KOFF: And Ms. Fedora is
according to --
MR. BLOOMBERG: Yes, and we
confirmed she is. Yes, Sir.
MR. AUGERS: My name is Craig
Augers, 97 Glendale Road. I have a couple
questions. One of them is that you were
talking about permits for the landfill, to
expand it and past permits that weren't
obtained.
MR. BLOOMBERG: That's part of
the appellant's argument.
MR. AUGERS: Part of the
process?
MR. BLOOMBERG: Yes. The
appellant's argument, I think, is, in part,.
that there were permits that should have
been obtained that were not obtained over
the time. And Mr. Augers, you're one of the
appellants? You're one of the appellants?
MR. AUGERS: So the T's weren't
crossed and the I's weren't dotted for the
permits, basically?
MR. BLOOMBERG: That's one of
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the questions before us.
MR. AUGERS: Because all I know
is that as a homeowner, a property owner, I
know that if I want to expand, say, my
septic system, I have to go out and get a
permit for that. And the question is why
has the Town of Florence or Northampton not
gotten the proper permits to do the work
that they were supposed to do? And they
should be held accountable, the town or the
powers to be, or whomever, for not getting
the proper permits.
And I think the environmental
part has something to do with that. If you
don't get the permits so the right zoning or
everything else, then all the other things
go to heck and a hand basket, if you know
what I'm saying. And they're serving what,
forty communities, you said? Something like
that. Is there a lawyer? If that be the
case, if we didn't have to serve all forty
of them and just kept it local, would we
have to get the future permits for the
landfill just for the people here in
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Floren
MR. BLOOMBERG: I think you're
asking questions that are part of why we're
here.
MS. NORTHRUP: Are you asking
us, is it rhetorical, or are you asking the
lawyer? Your lawyer is the one making that
argument
MR. AUGERS: I just believe that
if I have to go out and get permits to do
something, part of the reason why you have
people come in to give you a permit or do
whatever, is to make sure things are done
correctly. Am I correct?
MR. BLOOMBERG: Well, .we're here
to listen.
MR. AUGERS: Well, that's
basically it.
MR. BLOOMBERG: Okay. Thank
you.
MS. AUGERS: Mary Augers, and I
live at 97 Glendale, and I guess I'm one of
the appellant people. My opinion, on
listening to all this, is like this big
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issue is a change of use. And your argument
was hardware to a pharmacy is a change in
use, so you have to get that. But garbage
expanding to more garbage and taking in more
garbage is still taking in garbage. So I
guess my argument, though, is the idea that
why it would be a change in use. Is that
because they have not taken in all the
regional communities, it actually changed
what's been happening to the landfill. You
are still taking garbage, but now there's
talk of expanding the landfill into a larger
area. Why?
If we had not changed what we
were doing to the landfill and taking these
communities, would we have to expand it even
further? Because we would probably -- how
long would the life of the landfill be if we
were not taking in all the refuse from
everyone else? So that's kind of what I
wanted to make a point of, why I think it's
a change in use.
MR. BLOOMBERG: Thank you.
MR. ARONSON: I'm Bob Aronson,
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I'm not an appellant, or a litigant, or
anything. And I live about 1.2 miles north
of the landfill. And I can tell you this
morning I went and had coffee with my -- I
walked my dog down and went to Jim's
variety, which is at the corner of Ryan Road
and West Farms Road.
And in a space of about ten
minutes, ten heavy vehicles passed me, and
someone was besides me trying to have a
conversation and couldn't do it because of
exhaust noise from large trucks. Luckily, I
was up sun, and when these vehicles go by,
and I know they're all inspected and that's
not anyone's authority to inspect motor
vehicles in -the City or anything, they do a
opacity test on diesel engines, and they're
supposed to not make smoke. You could,
plain as day, see what looked like a
defective engine, and then it drifts up and
you breathe the stuff in.
So there is a impact, and the
nature of change is in the frequency and
scale. There's not a fundamental change in
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the use, but just as you're not going to
allow a sixty -foot sky scraper downtown for.
a hotel, you know, it's just scale. And
it's like importing cars into the United
States versus building them here. So that's.
a fundamental change in the nature of that
business. It's no longer an organic or
local business. It's importing, and
exporting, and taking in other product from
elsewhere that we're not -- we then don't
have control over.
And there's regulation and
authorities that look at all the things that
come in and do their inspection process, and
we have all kinds of established law and
bodies of law that's supposed to monitor and
safeguard the environment. And that's not
your issue. Those are there for a reason,
and you're here for a reason too and that's
about the zoning. The zoning is -- I don't
know the tenets of zoning. My guess is it's
supposed to protect residents from this kind
of changes and mission creek.
I lived next door to a
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greenhouse when I grew up, and it got
bigger, and bigger, and bigger, and it
affected people, to a certain extent, and
they allowed it, and it wasn't a noisesome
trade, but there was definitely traffic,
because it was a popular place to go. So
it's a side effect, kind of. It's not one
of the direct or malignant of things that we
think about when we think about a dump,
frequency of automobile traffic, heavy truck
traffic.
And also, it has an affect on
infrastructure, and I know it's not your
authority to maintain the infrastructure, or
the budget, or anything else. The roads
are - -- they're having,a burden placed.on
them that's undue as a result of this
increased frequency of heavy truck, and the
roads are falling apart. There's no
sidewalks for kids. The school bus isn't
operating at times when the dump is open.
So you have more kids on roads in close
proximity with school buses and heavy
vehicles and lack of enforcement for
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speeding that's unbelievable.
It takes me six months, when I
request the police department to do a radar
patrol on my road, and I'm in almost an S
curve, and they come whipping around there
at thirty -five miles an hour, an 18- wheeler.
And then to add to that, the trucks from
Willard. And they're gravel crushing, so
you have more and more trucks all the time,
and it's having an affect. It's like the
straw that broke the camel's back. So maybe
you should take that into consideration.
It's a factual thing. It's not
a procedural thing, but I think that's one
of the tenets of zoning, is to keep these
kind of.things away from residents and
that's why we have zoning. So that's all I
have to say?
MR. BLOOMBERG: Thank you. We
have about two minutes more, if there's
somebody who wants to speak briefly. Yes,
ma'am.
MS. HIESIGER: Linda Hiesiger,
982 Park Hill Road. Since I moved to the,
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unfortunately, moved to the house where I'm
living in, we've experienced horrible
landfill odors caused by gas emissions. And
the reaction of the Town was as if it was
something new. But I did a public file
review in Springfield, and much to my
surprise, there were files of documents from
when the landfill became a regional
landfill, not when it was a local
Northampton Landfill, when it became a
regional landfill. There have been odor
.issues and problems ever since then, dating
back to the nineties and to 2000, as
Ms. Fedora cited. It was shocking for me to
see that in the DEP file. There's been a
tremendous impact. There's been a_ change in
use.
When you go from a small
Northampton landfill, obviously, to a large
regional landfill, it's an industrial
landfill now. It's an industrial regional,
and we can't argue that it hasn't exchanged
tremendously. And the fact that there's so
many problems, it's beyond the pale that it
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didn't go before the Zoning Board, and the
Zoning Board -- there weren't checks and
balances to protect the residents, to
protect the environment, to protect the
children, to protect the City from any
liabilities. It should have been before the
Zoning Board.from the onset, as soon as they
wanted to change it, any changes.
The fact that they put the
Ameresco generator, they could have buried
it in a landfill. They put it abutting a
resident's property. They put a cell tower
there. They put everything there. Soon
there will be a cemetery there.. Any little
change, just like anything else in town, any
little change in town goes before the Zoning.
Board. It's beyond the pale that it didn't
go before the Zoning Board. Thank you.
MR. BLOOMBERG: Thank you. I
think that we continue -- do we need a
motion to do that? Yeah. A motion to
continue the hearing until June 26th at 5:30
p.m. in this room, with briefs to be
submitted by DPW by June 23rd
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electronically.
MS. NORTHRUP: So moved.
MR. SMITH: Seconded.
MR. BLOOMBERG: All in favor.
It's unanimous. This meeting is still open,
and we are moving to Wayne's office in City
Hall.
(Hearing concluded at 7:01 p.m.)
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COMMONWEALTH OF MASSACHUSETTS
Hampden, SS
I, Sandra Deschaine, Registered
Professional Reporter, hereby certify that
the foregoing is a true and accurate
transcription of the hearing held before the
Northampton Zoning Board of Appeals, on
June 12, 2008, to the best of my knowledge
and ability.
Sandra Deschaine
Registered Professional Reporter
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