Westport News

The Zoning Board of Appeals (the “Board) hereby submits for filing in the Town Clerk’s office the its decision and that following record of the Board’s proceedings regarding two applications for zoning relief received from Excel Recycling, LLC (“Excel”) for property located at 37 Charlotte White Road (the “Property”) as follows:

DECISION

A.    The Board voted to grant with conditions as set forth below Excel’s application for special permit relief, under Zoning By-law §4.1, to change or alter a lawfully pre-existing, nonconforming use at the Property because the Board found that there was a change or alteration of a lawfully pre-existing, nonconforming use and that any such change or alteration would not be substantially more detrimental as conditioned below than the existing use by a vote of 5-0.

B.    The Board voted to partially grant and partially deny Excel’s appeal, under Zoning By-law §2.4.2.0, from the Zoning Enforcement Officer’s May 19, 2009 enforcement order regarding the Property as set forth below by a vote of 5-0.
 
FINDINGS

Procedural History:

1. On May 19, 2009, the Town’s Zoning Enforcement Officer issued Excel a cease and desist order for the Property (i.e., Lot 10) on the grounds that a change in use of the Property by Excel, from a wholesale salvage use to a salvage use with a retail element, required relief under Zoning By-law Article 4.1.2 (Changes to Nonconforming Uses) and Zoning By-law Article 15 (Site Plan Review) and on the grounds that a separation of Lot 9 and Lot 10 through a recent conveyance constituted a change or alteration to the nonconforming use that required relief under Zoning By-law Article 4.1.2.

2. On June 4, 2009, Excel filed an application for zoning relief that sought an “Administrative Finding/Special Permit” from the Board that the “current use of the premises is not an alteration/expanse of non-conforming use;” or a finding that, if an alteration or expansion were found by the Board to have taken place, then “the change is not substantially detrimental.”

3.    The Board duly advertised and noticed a public hearing regarding Excel’s request for relief.  The public hearing opened on July 1, 2009 and continued on August 19, 2009, September 16, 2009 and October 7, 2009.  

4. On August 19, 2009, at Excel’s request, the Board voted 5-0 to allow Excel to amend its application to clarify that Excel wishes to appeal the Zoning Enforcement Officer’s May 19, 2009 cease and desist order.

5. On September 1, 2009, Excel delivered an “Amended/Clarified” application to the Board, entitled “Appeal of Zoning Enforcement Officer/Administrative Finding.”

6. At various times through the public hearing process, Excel provided written requests to the Board for extensions of the deadline for the time for the Board to take final action on Excel’s applications and the Board duly approved the requests.

7. During the multiple sessions of the public hearing, the Board heard extensive testimony from Excel’s attorney and representatives and from abutters and members of the public and sought and received advice from Town Counsel.

8. During the multiple sessions of the public hearing, the Board received numerous documents, plans, photographs, briefs, affidavits and other materials both in support of and in opposition to Excel’s applications for relief.

9. On Saturday, September 26, 2009, the Board took a view of the Property.  Also, individual Board members viewed the Property at various times, individually.

10. On October 7, 2009, the Board voted to close the public hearing.

11. On October 7, 2009 and October 22, 2009, the Board, after the members carefully reviewed all of the testimony and documentary evidence submitted during the public hearing, deliberated toward a decision.

12. The following Board members attended all sessions of the public hearing: Chairman Clayton Harrison and Regular Members Donna L. Lambert, Kendal Tripp, Gerald Coutinho and Associate Member Kimberley A. Fernandes.

13. Decision Date:  October 22, 2009.

The Property and its Historical Uses:

1. The Property (Lot 10) consists of 5 acres of land, with 200 feet of frontage on Charlotte White Road.

2. Gina’s Realty Corporation (“Gina’s) purchased the Property (Lot 10) on February 28, 1972.

3. The Property was used for an auto salvage use by Gina’s in 1972.

4. The auto salvage use at the Property was rendered nonconforming in 1973, when the Town adopted a zoning amendment that zoned the Property as residential.

5. In 1974, Gina’s purchased Lot 9, a ten-acre parcel of land with 426 feet of frontage, which abuts the Property (Lot 10).

6. Gina’s owned Lot 9 and the Property (Lot 10) in common from 1974 to July 31, 2008.

7. Gina’s or its tenants used Lot 9 and the Property as one commercial use from 1974 to July 31, 2008.

8. On May 19, 1987, the Board issued relief to Gina’s to allow the extension of a prior nonconforming use at the Property (Lot 10), finding that the Property was used for a Class III motor vehicle operation (junk yard) and a Class II motor vehicle operation (used cars) and general auto repair, with the Class III operation consisting of the dismantling of approximately 1,000 cars a year and the disposal of the car parts as either used parts or junk.  The Board specifically found that the foregoing operations were “prior non-conforming use of the premises when the area was zoned residential.”

9. Excel asserts that the Property (Lot 10) was used as “Thad’s Auto Salvage and Metal Recycling Center” from 1970 to 2008 by Mr. Richard Moniz or Gina’s and that the uses of the Property included metal recycling and that Excel purchased the Property during July 2008 and continued the existing auto salvage and metal recycling uses.

10. A corporation named “Thad’s Auto Salvage, Inc.” was organized on November 17, 1971.

11. Excel provided the Board with a copy of a Class III Motor Vehicle Junk License issued by the Town for the Property to Thad’s Auto Salvage, Inc. on January 1, 1972.

12. Excel provided the Board with excerpts from Town Annual Reports that indicate that the Town issued Class III licenses to Thad’s Auto Salvage, Inc. for the Property for the following years: 1972 to 1973 and 1975 to 1989.

13. Excel provided the Board with copies of Class III Motor Vehicle Junk Licenses issued for the Property from 1989 to 2009.
 
14. Excel provided affidavits, indicating the following:

A.    Russell T. Hart Affidavit, dated June 30, 2009.  Mr. Hart attested that, while he was the Town’s Highway Supervisor, he was aware that “scrap metal and used appliances were regularly taken from the landfill and delivered to Thad’s Salvage Yard” during a “period in the late 1970’s – early 1980’s.”  (Hart Affidavit, 4.)

B.    Harold Tripp Affidavit, dated June 30, 2009. Mr. Tripp attested that his family business (F.L. Tripp & Sons, Inc.) “sold scrap metal from the boat yard” to the operators of the Property “since the 1960’s” (Tripp Affidavit 3) and that his company delivered “marine engines, cast iron products, and miscellaneous scrap metals” to the Property (Affidavit 4) and that he observed delivery of scrap metal from other sources to the Property “since the early 1970’s” (Tripp Affidavit 6).

C.    Jim Manchester Affidavit, dated June 2009.  Mr. Manchester attested that he has been familiar with the Property for the last 40 years and is “aware that townspeople and businesses from Westport and the surrounding towns and cities sold scrap metal, salvage automobiles and used appliances” to operators of the Property and he “personally sold scrap metals – including light metals, heavy metals, and cast iron” to the owners of the Property. (Manchester Affidavit 2-4.)

D.    Richard Moniz Affidavit, dated June 2009.  This document indicates that the Property was used as a metal recycling facility, in addition to an auto salvage use, from before 1970 and was used by him from 1970 through 2008 (without interruption) to process, recycle, store and sell metal, as well as conduct the auto salvage use.  (Document, 2-9.)

15. On July 31, 2008, the Property (i.e., Lot 10) was conveyed from Gina’s Realty Corporation to Excel, with Gina’s Realty Corporation retaining ownership to the ten acre parcel that abuts the Property (i.e., Lot 9).

16. A number of members of the public oppose the continued operations by Excel of the Property.  

17. Two abutters, Ronald and Loretta Price of 323 Main Road, filed documents in opposition to Excel’s operations.

18. The Prices acknowledged that Thad’s Auto Salvage, Inc. conducted an auto salvage and automobile repair use from 1970 to 2006, when Excel took over the operation of the Property.  (Price July 1, 2009 Memo, p. 1.)

19. The Prices purchased their property at 323 Main Road in May of 2006 and believed, at the time of their purchase, that the Property (Lot 10) “looked abandoned,” as they “saw no evidence of an active auto salvage yard or scrap metal recycling at the Property.”  (Price July 1, 2009 Memo, p.1.)

20. The Prices assert that Excel “has either impermissibly changed its grandfathered, prior non-conforming use from auto salvage to scrap metal recycling or greatly and unlawfully expanded its prior non-conforming use.”  (Price July 1, 2009 Memo, p.1.)

21. The Prices assert that Excel has brought new equipment to the Property and is using it as a “scrap metal processing facility” and that Excel’s operations are “much noisier in quality and duration” than the prior operator’s.  (Price July 1, 2009 Memo, p.1.)

22. The Prices assert that Excel changed the type and volume of traffic from flatbed tow trucks used by the prior operator to 18-wheelers with large and medium-sized trailers.  (Price July 1, 2009 Memo, pp. 2-3.)

23. The Prices assert that Excel has “greatly expanded its use of the Property for non-vehicle metal processing and recycling.”  (Price July 1, 2009 Memo, p.5.)  

24. The Prices assert that the prior, lawfully pre-existing nonconforming use was 95% auto salvage and that the current use is 95% scrap metal processing.  (Price July 1, 2009 Memo, p.6.)

25. The Prices assert that Excel has failed to carry its burden to provide the Board with “comparative figures of what percentages of Excel and Thad’s businesses were comprised of scrap metal processing and recycling.”  (Price July 1, 2009 Memo, p. 7.)

26. The Prices assert that Excel’s use of the Property, when compared to Thad’s, generates more traffic (Price July 1, 2009 Memo, p. 7), more noise (Memo, p. 8), more environmentally harmful impacts (Memo, p. 9) and more adverse impact on the Prices’ property (Memo, pp. 10-11) and, therefore, an increased or new scrap metal recycling use is substantially more detrimental (Memo pp. 13-14).

27. The Prices argue that Excel abandoned the scrap metal use because it was not in existence from 2004 through 2008 as there is not a junkyard license for the Property during this time period.

28. The Prices submitted a supplemental memo, dated August 19, 2009, arguing that Excel has changed the prior nonconforming use and not just expanded it as part of becoming a more successful operation.

29. Excel provided an affidavit, dated August 28, 2009, from the former operator of the Property (i.e., Lot 10), Mr. Richard Moniz.  Mr. Moniz attested that, from 1970 through 2008, he “continuously operated an auto salvage yard and a scrap metal recycling facility at the property” and that there were both retail and wholesale aspects to the facility.  He attested that the parking spaces on the new site plan for the Property have been available throughout his ownership of the Property.

30. Excel provided an affidavit, dated August 31, 2009, from Sean Leach of SITEC, Inc., the land surveyor who created the January 24, 2008 site plan that depicts retail parking at the Property.  He attested that the site plan was created to depict existing parking spaces that already “were available to be used by the business.”  (Affidavit, 4.)

31. No specific evidence was presented that allowed the Board to determine how many employees there were in 1972 versus today or how many pieces of equipment there were in 1972 versus today.

32. The Board was presented with that the volume of auto salvage at the Property averaged between 1,000 and 3,000 cars per year from 1972 through 2006.

33. The Board was presented by Excel that the volume of auto salvage by Excel was approximately 1,000 cars in 2009.

34. The Board found that there was insufficient evidence for it to compare the amount of scrap metal processed in 1972 to what is processed today.

SUBSTANTIVE FINDINGS:

After reviewing all testimony and documents and other evidence submitted during the public hearing process and after taking views of the Property, the Board made the following substantive determinations:

1. The Board finds that a lawfully pre-existing, nonconforming auto salvage use has existed at the Property from 1970 to the present and that any such use has not been abandoned as per our Town Bylaw.

2. The Board finds that the Property and Lot 9 were used together as one commercial enterprise from 1974 to approximately 2006.

3. The Board finds that Lot 9 was used primarily to store autos to support the auto salvage use (both for scrap metal and spare parts) at the Property.

4. The Board finds that Lot 9 is not available to the Property today to store autos to support an auto salvage use at the Property because Lot 9 and the Property were conveyed into separate ownership.

5. The Board finds that the conveyance in separate ownership was a change in the use of the Property.

6. The Board finds that a pre-existing scrap metal recycling facility use has existed at the Property from 1970 to the present and that any such use has not been abandoned as per our Town Bylaw.

7. The Board finds that the auto salvage use was the primary use of the Property from 1970 to the 2000’s.

8. The Board finds that the scrap metal recycling facility use was not the primary use of the Property from 1970 to the 2000’s.

9. The Board finds that Excel’s present use of the Property is not primarily auto salvage.

10. The Board finds that Excel’s present use of the Property is primarily scrap metal processing for recycling.

11. The Board finds that the January 24, 2008 site plan shows parking spaces that are not shown on aerial photographs that predate the site plan.

12. The Board finds that Excel has not added a new retail component at the Property.

13. The Board finds that there has been a change in the use of the Property by:

(a)     Changing the use from primarily an auto salvage use to a primary scrap metal salvage facility use because the current operation and equipment have increased in scope and degree of emphasis to a non-vehicular scrap metal processing for recycling use; and
(b)     Separating Lot 9 and the Property.  

In making these findings, the Board understands that the burden of proof is on Excel to establish the nonconforming use; and the Board first made the subsidiary findings set forth below:

A. The Board finds that the current use by Excel does reflect the “nature and purpose” of the original nonconforming use of the Property in 1972.

B. The Board finds that there is a difference in the “quality, character and degree of use” at the Property from the original nonconforming use in 1972 from auto salvage (for scrap metal and parts) to a non-vehicular scrap metal processing for recycling use

C. The Board finds that the current use is different in kind in its effect on the neighborhood than the original auto salvage nonconforming use of the Property in 1972 because of an increase in truck traffic and other impacts to support the increased emphasis on a non-vehicular scrap metal processing for recycling use.

14. The Board finds that the Zoning Enforcement Officer’s May 19, 2009 cease and desist order must be partially upheld and partially reversed.
 
The Board voted 5-0 to reverse the portion of the May 19, 2009 cease and desist order that determined that a new retail use has been added to the Property because, while a site plan was provided to the Zoning Enforcement Officer that reasonably led him to conclude that new retail parking was being added, persuasive testimony was provided during the public hearing that there were already retail spaces in place and that the retail use at the Property was not new.

The Board voted 5-0 to uphold the portion of the May 19, 2009 cease and desist order that there has been a change in use at the Property due to the separation of Lots 9 and 10 because the nonconforming use has been intensified on a smaller parcel; and because there has been a change from a primarily auto salvage use to a primarily non-vehicular scrap metal processing for recycling use; and because the current operation has increased the scope and degree of emphasis toward to a non-vehicular scrap metal processing for recycling use.

16.    The Board finds that there has been a change in use and that an administrative finding shall issue to allow the change because the changed use is not substantially more detrimental than the original nonconforming use, provided that the following conditions of approval are satisfied.

CONDITIONS OF APPROVAL

A.    The hours of operation for heavy equipment, deliveries and noise generating activities at the Property shall be limited to Monday through Friday from 7 a.m. to 5:00 p.m. and on Saturdays 8:00 a.m. to 3:00 p.m.  No heavy equipment or deliveries or noise generating activities shall be allowed on Sundays, July 4th, Christmas, Thanksgiving and New Year’s Day.  For all other federal and state holidays, Saturday hours shall be observed.

B.    The operations at the Property shall be conducted so as to prevent traffic back-ups on Charlotte White Road by implementing effective measures such as relocating the truck scale, rerouting of truck traffic and deliveries, proper scheduling of deliveries, use of signage and/or other appropriate means and measures.

C.    The operator of the Property shall make every effort to reduce and control noise at the Property, by relocating noising equipment and activities, installation of effective noise barriers or other effective measures and shall conduct the use in conformance with all applicable local, state and federal requirements.

D.    This Administrative Finding shall continue in effect for two years from the date that it
    takes final effect and it shall be renewed automatically thereafter without a public
    hearing, provided that a written letter of application for renewal is made to the Board and
    Town Clerk at least three months before the date of expiration and there is no call for a
    Hearing as provided for below.  Written notice of the letter of application for renewal is
    provided to the Building Inspector/Zoning Enforcement Officer, Conservation
    Commission, Planning Board, Fire Department and Police Department, and Board of
    Health by the Zoning Board of Appeals. The written notice of the letter of application for
    renewal shall state that renewal shall be granted automatically by the Board without a
    further public hearing unless a written objection to the renewal, stating reasons for the
    objection based on specific public health, safety and welfare concerns, is received by the
    Board from one of the foregoing officials within 30 days of receipt by each of them of the
    written letter of application for renewal notice.  If one or more timely objections are
    received, a public hearing on the renewal request shall be held and shall proceed in a
    manner identical to the course of proceedings in connection with an original
    administrative finding application, but only to review the specific public health, safety
    and welfare concerns raised by the objections, and, furthermore, renewal of the permit
    shall not be denied by the Board and no new conditions shall be imposed, except to
    address the specific public health, safety and welfare concerns raised in the objections.

E.    This Administrative Finding shall be recorded by the applicant as a condition of approval and shall not take effect or be exercised until and unless it is duly recorded at the Registry of Deeds.

F.    This Administrative Finding shall lapse if it is not duly recorded at the Registry of Deeds or if substantial use under the permit is not commenced within two (2) years from the date the permit takes final effect (i.e. either 20 days after the decision is filed with the Town Clerk, with no appeal having been filed, or upon final resolution of an appeal from this decision is the applicant’s favor), except for good cause or the final determination of an appeal.

Record of Vote

The following members of the Board voted to approve this administrative finding as set forth above and as to the decision regarding the appeal from the May 19, 2009 cease and desist order:

Clayton M. Harrison - Chairman
Gerald Coutinho - Vice Chairman
Donna L. Lambert - Clerk
Kendal Tripp
Kimberley A. Fernandes

Any appeal shall be made pursuant to G.L. c.40A, §17 and shall be filed within twenty days after the date of filing of the notice of decision with the Town Clerk.  This decision shall not take effect or be exercised until and unless it is duly recorded at the Registry of Deeds.

NOTES:  
1. Renewable Date:                  
(Date of Renewal is based on the filing date at the Registry of Deeds per Item # 16D)
2. Town of Westport issued:  
Class III – Motor Vehicle Junk License  - to buy second-hand motor vehicles for the purpose of remodeling, taking apart or rebuilding the same, or the buying or selling of parts of second-hand motor vehicles or tires, or the assembling of motor vehicle parts – MGL. Chapter 140, Section 58.
Junk Collector’s License – to collect junk, old metals and second hand articles; subject to sections 202-205 of the MGL Chapter 140.