FREETOWN — The Zoning Board of Appeals reversed a years-old decision made by the town’s previous building inspector to change Excel Recycling's classification from a “scrap yard” to “commercial recycling facility.”
The March 27 decision aligns with new Building Inspector Jeff Chandler’s recent issuing of a cease and desist order to Excel, citing it's a commercial recycling facility and can’t operate without a special permit issued by the Planning Board.
The new ruling from the zoning board doesn’t represent a be-all, end-all decision on the fate of the company’s facility in Freetown.
Excel Recycling has been operating unlicensed for close to a year since the Board of Selectmen revoked the company’s license after hundreds of documented complaints from neighbors of noise and air pollution since it began operations in December 2016. Both parties remain deadlocked in litigation.
What the ruling does is add more pressure to Excel’s standing in court, as well as represent a greater semblance of unity among involved town departments.
Represented at the hearing by Attorney John Markey from Moses Smith, Markey & Walsh and Attorney Tyler Franklin from Rubin and Rudman, Excel Recycling relied on two arguments for opposing Chandler’s cease and desist letter and the zoning board’s proposal to reclassify the company.
The first was a moral argument pertaining to the long, formal process Excel went through to build the facility, beginning with when it approached the town in 2015. “This is not a family that came in and didn’t try to do its due diligence with the town. They asked permission all the way through. They got favorable written and oral opinion from the building inspector, from the then-sitting Board of Selectmen, who voted on it favorably, all before they went out and put their houses on the line to try and fund this project,” said Markey.
Markey cited previous Building Inspector Scott Barbato’s decision-making when Excel’s building permit was issued in May 2016, as well as the zoning board in August 2016 upholding Barbato’s decision.
The town’s bylaws were updated in the fall of 2016 to include definitions for “scrap yard” and “commercial recycling facility.” “One reason to stick with the original definition, other than because it’s fair, right, and morally consistent, is that it’s legally appropriate, and it would be legally inappropriate to revisit,” said Markey.
The second argument made was that Excel Recycling’s operation doesn’t fit the definition of commercial recycling facility. As explained, Excel buys old metal scraps and junk from private contractors and other companies, it processes it and sells it to other buyers. Aside from case-by-case exemptions, Excel generally doesn’t do business with the public or the town.
Markey cited Republic Waste’s commercial recycling facility in Freetown’s Industrial Park as an example showing the differences. “If you look at the current definition of scrap yard, that’s precisely what’s occurring here. Excel doesn’t generally collect from the public or the town of Freetown.”
The argument over definitions met with stern opposition from those in attendance.
“My interpretation of the intent of the bylaws is that a junk yard takes in items and sells to the public. A commercial recycler is set up that metals come in, are grinded, carted, and shipped out to other businesses. Public people aren’t purchasing them. That’s how I came up with my decision,” said Chandler.
“I contend that, as shredded metal, raw material is taken in, it goes through a process where it becomes usable finished product for an end user. It’s an extreme reach not to call them a recycling facility,” said Mark Rosofsky, a resident who stated he has 35 years of professional experience in transportation, including the recycling industry.
Several people in attendance went beyond the discussion topic debating Excel’s classification and reiterated the years of complaints they continue to file over noise, air pollution, oily fumes permeating through neighborhoods, and groundwater pollution worries.
Zoning Board Chairman James Frates interrupted them a few times to keep the conversation moving. “We don’t want to talk about the problems with Excel. We’re here to talk about the definitions."
The board sided with Chandler by a unanimous vote of 3-0, citing his descriptions of the definitions as the reason.
Speaking on behalf of Excel Recycling owners Marty Costa and Jon Costa, Markey said, “It’s unfortunate that a decision made three years ago by a prior building inspector, one which people and businesses relied upon with significant investment, can now be overturned, pulling the rug from underneath this family and these employees. With that said, we will be forced to litigate to protect the rights we have. There will be an appeal of the building inspector and Zoning Board’s decision, to be decided in court by a more independent person.”