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HomeMy WebLinkAboutAppendix F(3) - NG Zoning Opinion to Yarmouth (3.20.25)1 MEMO TO: Building Commissioner Mark Grylls; Administrator Robert L. Whritenour, Jr. FROM: Mark Rielly DATE: March 20, 2025 SUBJECT: Zoning Opinion re: LNG Tank Replacement, 127 White’s Path This memo provides a legal opinion regarding the applicability of the Town of Yarmouth’s Zoning Bylaw to the proposal of Boston Gas Company d/b/a National Grid (“National Grid” or the “Company”) to replace its existing LNG tank (the “Replacement Project”) at the National Grid-owned property located at 127 White’s Path, South Yarmouth (the “Property”). The Company’s South Yarmouth LNG plant (the “Plant”) is an essential element of the natural gas distribution system that is needed to supply over 120,000 customers on Cape Cod. The existing 2.1-million-gallon (50,000 barrel) tank has operated safely and reliably for approximately 50 years; however, it is approaching the end of its useful life and, given the importance of the Plant to system reliability on the coldest winter days, it requires prompt attention by National Grid. The Replacement Project will involve the in-kind replacement of the existing LNG storage tank on the Property with a modern, full-containment tank design, consistent with industry safety features. In short, in two related orders the Department of Public Utilities (DPU) exempted the Plant and the Property from local zoning. Therefore, as detailed below, the Replacement Project will not require any local zoning relief or approvals. D.P.U. Zoning Exemptions On January 15, 1969, pursuant to its authority under G.L. Chapter 40A, Section 3,1the DPU issued an Order in Docket D.P.U. 15972 approving with conditions the petition of the Buzzards Bay Gas Company (BBGC), a predecessor operating company of National Grid, for (i) a zoning exemption, (ii) a determination that the manner and the pressures at which gas will be stored, transported and distributed in connection with the proposed LNG plant; and (iii) an exemption to allow a minimum distance to property lines of not less than 300 feet (“1969 Order”). In that docket, BBGC proposed to address “the additional peaking capacity necessary to meet the ever-increasing loads” by initially installing a single 63,000-gallon LNG storage tank 1 G.L. c. 40A, section 3 provides in relevant part as follows: Lands or structures used, or to be used by a public service corporation may be exempted in particular respects from the operation of a zoning ordinance or by-law if, upon petition of the corporation, the department of telecommunications and cable or the department of public utilities shall, after notice given pursuant to section eleven and public hearing in the town or city, determine the exemptions required and find that the present or proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public. Mark R. Rielly Assistant General Counsel & Director 2 surrounded by an earthen dyke, a vaporizer, and a control building. BBGC anticipated needing to install a second tank within two years. It also proposed that in or about 1975 it would replace these tanks with an LNG processing plant and “a 50,000 barrel or 185,000 MCF insulated and lined concrete storage vessel.” The 1969 Order exempted not only the project proposed at that time (i.e., the construction of the existing facility), but also the Property as a whole: ORDERED:Thattheparcelofland inthetownofYarmouth,BarnstableCounty, Massachusetts,locatedoffthesoutherlysideofWhite'sPath,approximatelythirty- fivehundredfeeteasterlyofitsintersectionwithStationAvenueinsaidtown, substantiallyasshownonaplanonfilewiththepetitionentitled"PlanofLandin SouthYarmouth,Massachusetts,BelongingtoBuzzardsBayGasCompany NamingAbuttersofRecordandShowingLNGFacilityLocation-Date11/9/68 Scalelin.=100ft."andfurtheridentifiedasExhibit3atthehearing,butmorefully boundedanddescribed asfollows:[metes and bounds description and plan information omitted]and theliquefied natural gasprocessing, storage facilities and regasification equipment and related structures tobeinstalled thereon and therein beandhereby areexempted from the operation ofthezoning by lawofthetownof Yarmouth under the provisions ofsection 10 of Chapter 40Aof the GeneralLawsofMassachusetts totheextent thatthey may beused for or in connectionwiththeprocessing,transportation,liquefactionandregasificationand storageofnaturalgas.(Emphasis added). The proposed tank replacement is intended to enable the continued use of the Property “for or in connection with the processing,transportation,liquefactionandregasificationandstorageofnaturalgas”. Accordingly, the 1969 Order remains in full force and effect to exempt the Property from local zoning regulation.2 BBGC subsequently petitioned to amend the 1969 Order and to be granted a new exemption because of necessary modifications to the facility, including the installation of two new 60,000-gallon propane storage tanks and the continued use of two existing satellite tanks for a limited period until construction of the larger concrete LNG tank could be completed. On November 5, 1971, the Department approved BBGC’s petition by Order in Docket D.P.U. 15972A&B (“1971 Order”). The 1971 Order similarly stated that the zoning exemption remained in effect so long as the Property and the facilities and structures on it were used for LNG storage, from local zoning regulation so long as it was used for the processing, transportation, liquefaction and regasification of LNG. In accordance with the DPU’s 1969 and 1971 Orders, the Property and the LNG facilities located thereon continue to be exempt from local zoning regulation, meaning that the Project does not require any zoning approvals or relief that it would otherwise require. 2 In granting the requested exemptions from Yarmouth zoning, the DPU imposed certain conditions, including that, “the minimum clear distance from the edge of any container shall not be less than three hundred feet to the nearest property line”, and “[t]he total storage of [LNG] at no time shall exceed 50,000 or 185,000MCF”. The Project will comply with these conditions. 3 Zoning Requirements In the absence of the zoning exemptions granted by the DPU, the Project likely would require a Special Permit from the Board of Appeals. See Zoning Bylaw Use Table at § 202.5(F8) (designating “Public Utility” uses as “BA”, meaning that it is “Permitted only under a Special Permit issued by the Board of Appeals”, for properties located in the B3 Business Zoning District). The tank might also require a dimensional variance for height as it is proposed to exceed 85 feet in height, greater than the 35-foot maximum height set forth in Section 203.4.2, Table of Maximum Building Height.3 The Company will secure all other necessary permits and approvals. Notably, the Company and its consultants have determined that the Replacement Project will not require any Federal or state environmental permits, including review pursuant to the Massachusetts Environmental Policy Act (“MEPA”). The Company will notify the DPU Division of Pipeline Safety, acting as the agent for the federal Pipeline and Hazardous Materials Safety Administration, at least 60 days before construction as required under 49 C.F.R. 191.22(c). The Project will be covered under the National Pollutant Discharge Elimination System (“NPDES”) Construction General Permit. Locally, the Company will secure stormwater permits and once the replacement tank is in-service, the Company anticipates seeking a demolition permit from the Town pursuant to 780 C.M.R. 105 (Demolition Permit). Conclusion The DPU’s 1969 and 1971 Orders exempt the Plant and the Property from the Town of Yarmouth’s zoning regulations for so long as “they may be used for of in connection with the processing, transportation, liquefaction and regasification and storage of natural gas”. Because the Company will continue the use of the Property for those purposes, the DPU’s Orders continue in full force and effect such that the Company does not require any local zoning relief or approvals for the Replacement Project. 3 The Replacement Project will not generate, treat, store or dispose of hazardous waste subject to M.G.L. c. 21C and 310 CMR 30.000, and thus will comply with the Aquifer Protection Overlay regulations. See Zoning Bylaw, § 406.4.1.