Split decision on Century Acquisitions appeal

NORTH CANAAN — It was a split decision by the Sheffield Zoning Board of Appeals (ZBA) on an administrative appeal concerning the Century Acquisitions property, which crosses the state line into North Canaan.

Allegations of a substantial increase in activity, and concerns about impacts on the neighborhood were not upheld.

However, the company will have to seek a permit for a leased use of the property.

The deliberation and decisions were made in a session Jan. 21 that lasted about two- and-a-half hours. (An original, Jan. 7 meeting was postponed due to weather). It followed two lengthy and well-attended public hearing sessions in November and December on concerns raised by two grassroots opposition groups.

The two groups, Citizens Against Asphalt in North Canaan and NO asphalt! in Sheffield, were formed about a year ago, when Century applied for permits to add an asphalt batch plant to its allowed operations.

That application was withdrawn without prejudice when it was discovered there were flaws in the procedure.

Neighbors had concerns about use

Last fall, the administrative appeal was filed when neighbors said they were seeking “relief� from what they called a notable increase in noise, hours of operation, truck traffic and blowing sand. The neighbors also asked for an investigation into activities by B. Metcalf Paving of Salisbury, which is leasing a portion of the property.

The Sheffield zoning board members ruled Jan. 21 that the groups had not sufficiently proven a substantial increase in impacts on the adjoining residential properties.

They called what was submitted by neighbors “anecdotal,� and noted that Century submitted evidence that included computer monitoring of dates and times machinery was in operation. While those hours are not regulated, the records do not corroborate neighbors’ assertions that the plant operated well into the evening on a regular basis.

Two decisions

A motion was approved to deny the appeal on that point, and to uphold the decision of the Sheffield building official to allow Century to continue to operate within its status of a nonconforming use.

The status was granted in 1994 when zoning was enacted. The plant was then owned by Connecticut Sand and Stone. Under Massachusetts law, changes to nonconforming operations, sometimes called “grandfathered� or protected uses, are regulated by the ZBA. Substantial increases in use or changes in use jeopardize that status.

On the matter of the leasing of a portion of the property to B. Metcalf Paving, ZBA members voted to uphold the appeal. Century will be required to seek a special permit to allow for another use of the property.

Century operates a cement batch plant. Metcalf recycles materials, mostly unused shingles, as well as waste product from Century, into paving material.

Dissent among members

Board members voted 4 to 1 on both motions. Eric Blackburn disagreed with his fellow board members, insisting that their reasoning was flawed. Since decisions on land use apply to the land, not the owner, the issue of the relationship between the two companies does not matter, he said. What was being done on the property was the determining issue.

He insisted the two operations are essentially the same because they both use aggregate material— a mixture of rocks and minerals — as a basis for manufacturing.

But Bart Elsbach argued that the nonconforming use status was transferred only to Century Acquisitions when it bought the operation the following year. It does not automatically apply to Metcalf, which came on site five years ago. He said that under Blackburn’s reasoning, “we lose the teeth of the zoning bylaw.

“We would have no control. Increased use must be an expansion of the original use. We’re talking about growth of an existing business, not a new business.�

Attorney Ellen Doucette, consulting for the ZBA, said it could be argued within the law that Metcalf did not grow out of the Century Acquisitions use.

“In order for Metcalf to be there, Century Acquisitions needs a permit to expand. Metcalf may also need a planning board permit,� Doucette said.

ZBA Chairman Eric Carlson agreed with Elsbach, saying situations such as this are interpreted as being allowed “by right.�

“That takes away any regulatory power and does a disservice to the people who live down there,� he said. “If we look at the one thing they have in common and overlook the big picture, it takes away the opportunity for people to sit at a table and make decisions and put conditions on land use.�

Peter Rowntree also agreed, saying, “As a ZBA, we have to make sure the maximum is done to lessen impacts. We can’t do that without a special permit.�

Like his fellow board members, David West spoke in favor of the Metcalf recycling approach, but noted the need for permitting that would allow regulatory control.

He also shared some stern words that members of the public later said illustrated their lack of confidence in Sheffield planning officials.

West was on the planning board when zoning was written in the early 1990s. He discussed the intent of the regulations. One goal was to avoid putting companies out of business, or to dead-end their future when designating various zones.

Another goal was to look at existing industrial uses, and consider those uses specifically.

West said they did not discuss what was then Connecticut Sand and Stone, but they did not realize the property is in Sheffield. West cited the name and the meandering state line as factors in the erroneous conclusion that the plant was in Connecticut.