SPRINGFIELD – A Hampden Superior Court judge has denied the request from Baystate Blasting, Inc. of Ludlow for a summary judgment against the city’s Zoning Board of Appeals which would allow the company to proceed with construction of a dynamite storage facility on Root Road.
Baystate Blasting argued before Judge Bertha D. Josephson that the ZBA failed to act within the mandated time frame on their appeal to the board of a decision by Building Superintendent Jonathan Flagg that the proposed facility constitutes a contractor’s yard and would require permits issued by the City Council and the Planning Board.
Baystate claimed that the ZBA needed to act within 75 days of the filing of their appeal of Flagg’s refusal to issue a building permit for the project to construct 13 storage bunkers for explosive materials. Baystate argued that the storage facility is a warehousing operation and an allowed by-right use of the property under the city’s zoning laws.
Josephson ruled that “extenuating circumstances” which delayed the ZBA’s review and vote on the petition to overturn Flagg’s decision and were beyond the board’s control.
Baystate Blasting appealed to the ZBA on Nov. 10, 2010 and the board began a public hearing on that petition on Dec. 22, 2010, but continued the hearing to Jan. 12, 2011. Gov. Deval Patrick, however, declared a state of emergency on that date because of a winter storm, meaning that City Hall was closed and the continued hearing cancelled.
The ZBA, through Chairman Michael Parent, rescheduled the public hearing for Feb. 2, 2011 because of the public notice, “by publication in a newspaper of general circulation” requirement of the city’s zoning and state law.
The dynamite storage facility was opposed by nearby residents and businesses, as well as by members of the City Council. Ward 1 Councilor Christopher Keefe introduced a zoning amendment controlling transportation of explosive or toxic materials through residential areas surrounding land zoned for industrial uses.
In June the Planning Board voted to send a positive recommendation to the City Council pertaining to a zoning ordinance amendment that would add further control for projects in industrial areas. The board’s vote followed a public hearing at which Keefe, the sponsor of the ordinance change, presented information about the intent of the amendment.
That intent, Keefe said at the June 5 public hearing, is “to add teeth and clarification to the existing ordinance, to make the intent clear and to provide leverage we don’t normally have now.”
The amendment will trigger a special permit review by the Planning Board for what is a by-right use of industrial property if explosive, toxic and other materials need to be transported through a residential area to the facility in the industrial area.
Keefe said that the amendment was never brought before the City Council for action within the 90-day requirement following a public hearing on the proposal and that he will refile the legislation this session.
“The zoning ordinance timed out, got spiked in (the Legislative & Ordinance) Committee after (former Ward 2 Councilor and L&O chairman James E.) Brown resigned,” Keefe said this past weekend. “I will have to bring it back again, but the pressure is off because of the court’s decision.”
Keefe said that the ZBA decision to uphold Flagg’s ruling that the project constitutes a contractor’s yard will require Baystate to come before the City Council for a special permit, then to the Planning Board for site plan and stormwater permits.
“Root Road is not the best location for that use because trucks have to pass through residential neighborhoods and by a daycare center,” Keefe said.
