Zoning Board Rules on C&D Classification

Dealing a setback to the proponents of a waste transfer station, the Pittsfield, Mass., Zoning Board of Appeals ruled the facility should be treated as a scrap yard and not as a warehouse, effectively rescinding the permit for the proposed building's foundation.

At a meeting last week, the ZBA ruled in favor of a group of residents opposed to Valley Mill Corp.'s proposed waste transfer station. If built, the facility would be able to process up to 250 tons per day of construction and demolition debris, sorting it, crushing it and then storing it before it is carted away by rail.

The ruling overturned an opinion issued by the city's Community Development Board last August, which concluded that the waste transfer station should be treated as a warehouse and cleared the way for its construction in a light industrial zone. The building inspector had sought that ruling because there is no language in the city's zoning ordinances addressing waste transfer stations.

The warehouse classification was sharply criticized by opponents of the transfer station, many of whom formed the group Residents Against the Transfer Station on South Street. They accused the Community Development Board of poor judgment, and several suggested that it had issued a lax ruling as a favor to Valley Mill Corp. and to the former, who has been involved with the project and is friends with the Garrity family, which owns Valley Mill.

"It is not a warehouse and it has never been a warehouse, and that has always been our contention," said Raymond Boudreau, the RATSSS spokesman. "Does this decision stop Valley Mill? No. But it means the next time they apply [for a building permit], they will have to apply as a waste transfer station."

But the attorney for Valley Mill, Kenneth Margolin of Boston, said the company will appeal the ZBA's decision, either to Superior Court or to Land Court.

"Before the Zoning Board of Appeals got a hold of this, the Community Development Board and two building inspectors had all come to the same conclusion," that this facility most closely resembles a warehouse and should therefore be allowed in a light industrial zone, Margolin said in a telephone interview.

An attorney hired by the city of Pittsfield disagrees, however. Kenneth Kimmell of the Boston firm Bernstein, Kushner & Kimmell sent the ZBA a letter outlining his opinion and arguing that the Community Development Board was in error and that "the proposed facility is more properly classified as [a] 'wrecking, salvage or scrap metal processing yard' under the city's zoning ordinance."

Kimmell argued that Valley Mill's own description of the transfer station acknowledges that the incoming construction and demolition debris will be processed and broken into smaller pieces before it is shipped. That activity, he asserted, exceeds what would typically go on at a warehouse.

That argument appeared to sway the ZBA. "We didn't look at this as a storage warehouse," said ZBA Chairman Albert Ingegni in an interview. "It is a difficult decision, and I don't think there is a black and white on this. It really is a gray area."

Valley Mill's Margolin countered that any processing would be done by a "garden variety hydraulic claw," commonly found on construction sites, and that nothing as intense as a crusher or grinder would be used. He said that the only processing would be done in the context of sorting the material; to the extent anything would be crushed, he said, it would be done when the claw picks up debris to put it in a bin to be hauled away.

The ZBA decision adds another layer to the already complex history surrounding the transfer station. As the proposal has wended its way through the city and state bureaucracies, it has been challenged at every turn. The City Council has been wrestling with a new ordinance that would put restrictions on waste transfer stations but, as mandated by state law, would still allow them in light industrial zones, albeit by a special permit that would be issued by the Zoning Board of Appeals.

The public hearing for that ordinance has appeared on every City Council agenda since November, but has still not been resolved as the councilors await word from the city solicitor that the language passes legal muster.

Still to come is a ruling by the state Department of Environmental Protection that Valley Mill's application for the transfer station is complete. The DEP will then be called on to deem the project acceptable for the site proposed, and will also be asked to grant a variance from state law that prohibits waste transfer stations within 100 feet of a residential property line; this one would be within a few feet of the closest residential property.

If it clears the state level, the plan will then come to Pittsfield's health commissioner for approval, and Mayor James M. Ruberto has said he expects to name a person to fill that job, likely a local physician who will serve in only a part-time capacity. Berkshire (Massachusetts) Eagle