Hearing on Landfill Zoning: Sea of Confusion

*Planning Director Wayne Feiden and Planning Board chair Steve Gilson took lead roles at a joint public hearing* on Thursday which considered a citizen petition to ban all landfills in the city’s Water Supply Protection Districts. Current zoning allows the operation of landfills in such districts if they have gained a state environmental permit known as “site assignment.”

Present were Councilors David Narkewicz, Maureen Carney, and David Murphy for the Ordinance Committee, and Steve Gilson, Frandy Johnston, Mark Sullivan, George Kohout, Marilyn Richards, and Katherine Baker for the Planning Board. Citizens in attendance consisted largely of supporters of the zoning amendment.

Feiden, in explaining the proposed zoning amendment, presented his argument that the landfill is “grandfathered” and that any zoning change would be moot when considering an expansion. Citing a letter from zoning lawyer Mark Bobrowski, Feiden asserted that any landfill expansion would need, at most, a zoning board finding, and not the special permit from the City Council that the city has been gearing toward for the past several years. A special permit process could still be gone through voluntarily, said Feiden, but only if the current language which exempts landfills with site assignments is retained.

A ban on all landfills in water protection districts would have the unintended effect of making an optional adoption of a special permit requirement impossible, said Feiden. “Right now the landfill is grandfathered,” said Feiden. “This zoning change would take away the special permit option.”

Gilson said that he was “worried about getting down this rat-hole of grandfathering,” and reiterated Feiden’s position that if the expansion were deemed “no more detrimental” than the existing use, that a ZBA finding would suffice to advance a landfill expansion.

Feiden noted that the issue of whether the landfill is “grandfathered” or not has never decided by a judge, and said that he was relying upon a decision made made the Zoning Board of Appeals. The ZBA in 2008 ruled that an expansion of the landfill in the 1980′s had been grandfathered, and that the city’s failure to apply for a special permit at that time was of no relevance. The ZBA decision was subsequently challenged in a lawsuit that was settled out of court with a $1.2 million city buyout of two properties near the landfill.

Feiden had no definite answer to a question regarding how long grandfathering would stay in place after the current landfill cells close in 2012. “If grandfathering expires, then clearly there is no landfill if this ordinance passes,” he said. The test, said Feiden, would be if there were a “break in usage without showing intent.”

Mimi Odgers and Joanne Besette, both speaking for the petitioners, said that they did not believe that a 20-acre expansion of the regional landfill, established in 1969, would be deemed a grandfathered use if brought before a court of law. “Courts deny grandfathering all the time, especially if the use is detrimental,” Besette said.

Besette urged passage of the amendment so as to bring Northampton into compliance with state standards, and noted that the now-famous waiver granted to Northampton during the site assignment process was completed under the Romney administration, when a different philosophy about solid waste management held sway at the DEP.

“It would be sad legacy for Northampton to be the only city in the state that allows landfills in water protection districts,” she said.

Anne Capra, speaking for Barnes Aquifer Protection Advisory Committee (BAPAC), spoke in support of the ordinance, as did City Councilor Marianne LaBarge and a host of citizens.

“The state says you could have this loaded gun, but the state is not forcing you to shoot yourself with it,” said a woman from Fort Hill Terrace.

“We are laboratory animals in a disastrous experiment,” said Bob Aronson of Glendale Road. “The normal channels of government have entirely failed to protect us. If a multi-family house were covered in lead paint, would you still give it a permit?”

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Northampton’s odd water protection zoning, which specifically allows landfills that have been granted state-level site assignment, dates from about four years ago.

In 2006, the Massachusetts Department of Environmental Protection (DEP) granted the city a waiver of state regulations that prohibit landfills over aquifer recharge areas. The water protection overlay district which encompasses the landfill was formed in 2007 in response to a set of five conditions of the waiver enumerated by the state. The DEP at that time told Northampton told to put in place “zoning and non-zoning controls in the Northampton portion of the Maloney Well Zone II” if it wanted to expand its landfill. As passed by the City Council, landfills with state permitting in hand were exempted from the list of banned uses in that zoning district.

The aquifer recharge area, upon which the landfill sits, feeds the Maloney Well, which serves as a backup drinking supply for the city of Easthampton. The aquifer recharge area was mapped by the state in 2001, thirteen years after Northampton bought a parcel of land next to the existing landfill parcel with the intention of planning for an expansion.

The citizens’ zoning amendment would ban all landfills in the city’s water protection zoning districts; not just those without site assignment.

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At the end of the night, the Planning Board voted to advance the petition to the council’s Ordinance Committee without recommendation. If ultimately taken up by the full council, passage will require an two-thirds affirmative vote among the nine Northampton city councilors.

Several Planning Board members, in their discussion about whether to recommend advancing the amendment to Ordinance Committee, admitted to a murky understanding of the zoning and permitting issues around the landfill expansion.

“I’m still confused,” said board member Marilyn Richards. “Is the landfill grandfathered?”

“The only person who can make that determination is a judge,” said Gilson.

An initial vote had members Katharine Baker, Mark Sullivan and Francis Johnson in support of recommending the amendment to the Ordinance Committee, with Richards, George Kohout and Gilson in opposition. In light of the tied vote, a second motion to advance the zone change with no recommendation passed unanimously.

“It was wrong of the DEP to grant the waiver,” said Johnston, who called the final vote to advance with no recommendation “pathetic.”

Sullivan said that he was “morally” in favor of the resolution, even if it proved to have no effect upon the zoning and permitting process.

Baker called the zoning amendment a “simple, clear, and responsible way to eliminate the maybes and whatevers.”

Richards opposed the amendment on the grounds that it would be “confusing to voters.”

Kohout opposed the amendment because it “eliminates room for discussing a full range of options.”

Gilson said that the amendment “doesn’t do what the petitioners want, which is to stop the landfill.”

The Ordinance Committee is expected to vote at its April 12 meeting whether to send the resolution to the full City Council.

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