Bessette on Latest Landfill Twist; Koff’s Analysis of Landfill Zoning Contrasts with Bobrowski’s

3/25/10 update:

We received this feedback:

The [Zoning Board of Appeals] disagreed with Mr. Koff and found that the landfill was grandfathered. This decision was appealed and then the appeal was settled. As a result, the ZBA decision stands.
Attorney Jendi Reiter responds,

No legal precedent can be created by a case that is settled before the court rules on the issues. As it stands, we simply have two conflicting legal arguments: attorney Bobrowski’s claim that the landfill expansion is grandfathered, and attorney Koff’s claim that the landfill is not entitled to grandfathering because it has been operating as a nonconforming use since 1990, when it changed from a local to a regional landfill. Koff additionally raised the question whether the landfill also needed and failed to obtain a permit to operate a private power-generating utility when the Ameresco deal was signed in 2005. These open factual issues were never ruled on by a disinterested judicial body.

Since Koff dropped his appeal, the ZBA’s decision is binding as to his clients’ request for an order to stop the landfill from accepting trash generated outside Northampton. It does not preclude any other parties from challenging Bobrowski’s sweeping claim that the city council may not exercise environmental oversight over a significant expansion of a heavy public use. If accepted, this argument could seriously gut environmental regulations in Massachusetts. It would certainly be appropriate to ask a court to sort out the complex factual and legal disputes surrounding the landfill expansion. The ZBA does not automatically get the last word.

Original post:

Here are comments prepared by Dr. Jo-Anne Bessette for the March 18 City Council meeting, followed by a history of the zoning of the landfill prepared in 2008 by attorney Peter Koff on behalf of expansion opponents (PDF, 4MB).

Northampton’s planning staff, relying on the opinion of outside counsel Mark Bobrowski, recently claimed that “the landfill, because of its grandfathering, would not require a Special Permit”. By contrast, Koff states, “…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.”

First, Dr. Bessette’s comments:

In 2005 the Environmental Impact Report submitted to the state said the landfill
     expansion requires site plan approval from the Planning Board and a
     special permit for a heavy public use from the city council

In 2007 the city council passed a legally reviewed ordinance to exempt the landfill
     expansion in a Water Supply Protection District only if it receives a
     special permit from the city council

In 2008 Wayne Feiden briefed the city council on their quasi-judicial role
     when they vote on the landfill expansion special permit

In 2008, Attorney Michael Pill gave advice to the city council on their role
     as the special permit granting authority for the landfill expansion

2010: The city releases a legal opinion from an attorney, this not a ruling by a judge,
     saying the landfill expansion does not need a special permit because it is
     grandfathered based on the first ever Mass. DEP waiver (given in 2006)
     bypassing the state’s own ban on siting landfills over aquifers.

After all these years of a city council self-imposed gag order because of the special permit, what is going on? Political manipulation? Incompetence? The city is trying to clear the road for the BPW to push through the landfill expansion. What do you think of having to get a special permit to put a deck on your house and the city’s new position that the landfill expansion does not require a special permit?

This sheds light on the BPW’s confusing resolution favoring the landfill expansion but not applying for the special permit.

What is the true intent of the city council resolution?

Is this a way for city councilors who favor the landfill expansion to align themselves with the voters who rejected expanding the landfill over the Barnes aquifer by a margin of 2:1, thinking they will not have to vote on the special permit?

Or was it a true and honest effort to terminate the landfill expansion and move on?

If it is the latter then we expect the city council to demonstrate this by their actions:

  1. To pass the citizens’ amendment with the citizens’ language intact, to prohibit all landfills in Water Supply Protection Districts, including the district over the Barnes aquifer. No matter what the city’s current legal opinion regarding the landfill expansion, we expect the city councilors to act in good faith and respect the will of the voters, and pass the citizens amendment.
  2. We expect the city councilors to follow through on their promise to go forward beyond the landfill expansion by voting no to funding any requests for money for the permitting process.
  3. We expect the city councilors to look at solid waste alternatives independently of the BPW. The BPW has already stated the landfill expansion is the best solid waste option when other reasonably priced options exist.
  4. We expect the city council to vote NO to borrowing millions of dollars to fund the construction of the landfill expansion.
Northampton voters will find out if they have a government that represents the will of the voters or that rules by fiat.

Second, this 2008 zoning enforcement request prepared by attorney Peter Koff includes an analysis of the history of the landfill and its zoning. Contrast it with attorney Bobrowski’s.

See also:

March 25: Ordinance to Ban Landfills from Water Supply Protection Districts Goes Before Planning Board and City Council Ordinance Committee
We urge concerned citizens to attend this public meeting:

PLANNING BOARD AND CITY COUNCIL ORDINANCE COMMITTEE in Council Chambers, Puchalski Municipal Building, 212 Main Street, Northampton, MA for public hearing:

7:00 PM Proposed Zoning Ordinance amendment to prohibit landfills in Water Supply Protection Districts 

Northampton Media: “Council passes solid waste resolution, 5-3-1 (3/18/10)
With five yeses, three abstentions, and a single no vote, City Council passed a resolution on Thursday that “advises the Board of Public Works to terminate further action on the landfill expansion in order to begin planning for both the scheduled closure of the existing Glendale Road facility and for how Northampton will manage its solid waste when our landfill closes.”

Gazette: “Landfill issue takes new turn in Northampton” (3/20/10)
The opinion of Mark Bobrowski, a Concord lawyer who has written a handbook on land use and planning laws in Massachusetts, debunks a years-held belief that any expansion of the Glendale Road facility would require a special heavy-use permit from the City Council and site plan approval from the Planning Board.

City Council President David J. Narkewicz called the memo “provocative,” but he doesn’t believe that the zoning opinion will change the process the city established for expansion three years ago.

In the end, he noted, the council still must decide whether to approve funding for an expansion. And both Mayor Clare Higgins and the Board of Public Works have stated publicly that they will not ask the council for money to advance such plans, something Higgins confirmed at Thursday’s council meeting…

When Tacy asked about the gag order and wondered if he could talk about the landfill with residents, Pill said he could, noting that the positions of the BPW and mayor and last fall’s referendum vote make the filing of a special permit unlikely.

Springfield Republican: “Northampton council tries to bury discussion on landfill expansion” (3/19/10)
…some residents believe the resolution is a Trojan horse designed to sneak the expansion back onto the table, and some councilors have indicated that they agree…

Given the legal opinion about the special permit, [Ward 5 City Councilor David] Murphy said the situation has yet to fully play out.

“This isn’t over by a long shot,” he said.

Landfill is Grandfathered, Says Outside Counsel; Planning Staff Disfavors Proposed Ordinance (3/17/10)

Gazette: “Northampton City Council shelves landfill expansion” (3/5/10)

Bessette: Ban Landfills from Water Supply Protection Districts; Video and Transcript (2/25/10)

Northampton Media: “BPW Votes to Hold Off on Landfill Expansion Application” (1/27/10)

Rebuttal to Dr. Geoffrey Kuter’s Brief for Landfill Expansion (1/26/10)

Barnes Aquifer Protection Advisory Committee: “Why Aquifers and Landfills Don’t Mix”

Paradise City Forum: Landfill and Aquifer