Claremont board again rejects construction waste plan

CLAREMONT — The Zoning Board of Adjustment took only minutes to deny a rehearing request by Acuity Management of Massachusetts on its application to allow construction and demolition at American Recycling on Industrial Boulevard.

The board’s unanimous decision Monday night reaffirmed its decision last month and came after a few brief remarks from members, who agreed that Acuity has not obtained the required state permits that would classify construction and demolition material as recyclable.

“We should move forward to deny the rehearing and restate that until the applicant gets the proper permits from DES (the New Hampshire Department of Environmental Services) we are upholding (city planner deForest Bearse’s) original decision,” Todd Russel, the board’s acting chairman, said before making the motion.

In June, Bearse denied Acuity’s application to bring in construction and demolition material, sort it for recyclables and ship the rest by rail to an Ohio landfill because she determined it would change the operation from recycling to a transfer station, which is not permitted in the industrial district. The Zoning Board upheld that decision on Aug. 1, and Acuity, a private equity firm that owns American Recycling, then asked for the rehearing or clarification.

In its appeal, Acuity, through its attorney, Jeffrey Christensen, said the board’s earlier decision denied the applicant’s appeal while also stating that if DES permits the proposed expansion as a recycling facility then that is how it would be treated under the city’s zoning ordinance.

“Because the intent of the Decision appears to be to modify the zoning administrator’s decision and not to affirm it, the Applicant seeks clarification of the Decision,” Christensen wrote in his six-page motion for clarification or rehearing.

The board did not discuss the appeal but instead reiterated what it asked Acuity to do in its Aug. 1 decision.

“We told them they needed a permit, and we directed them to get the proper permits from the state,” Russel said. “I think we clarified that enough.”

At the Aug. 1 public hearing, board member Dave Putnam said the board believes state guidelines do not define construction and demolition material as recyclable and that Acuity must first obtain state permits to see how DES views the debris.

Putnam said at Monday’s meeting, in which public comment was not permitted, that Acuity had provided only an email stating that a permit may be granted by DES in the future.

“It is hard to make any decision moving forward until the applicant has that permit,” Putnam said, quickly adding that Zoning Board approval would still be required once a state permit is obtained.

Opponents of Acuity’s application hired an attorney, who argued in a letter to the board that local regulations are not preempted by state law and that construction and demolition material is solid waste and not recyclable material.

Amy Manzelli, an attorney with the Concord and Keene law firm of BCM Environmental and Land Law, said that state law “explicitly provides” that a permit by DES does not affect any obligation to obtain local approvals.

“Rather than preempting local regulations, the statute actually mandates that an applicant obtain local approvals before being issued a permit,” Manzelli wrote in a Sept. 19 letter to the board.

The board did not discuss the letter.

Patrick O’Grady can be reached at pogclmt@gmail.com.