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HomeMy WebLinkAboutStatement in Support of Special Permit and Variance 1 Statement in Support of the Application of Boston Gas Company d/b/a National Grid to the Yarmouth Zoning Board of Appeals for a Special Permit and, if necessary, a Height Variance for its LNG Tank Replacement Project at 127 White’s Path, Yarmouth, MA Boston Gas Company (“Company”) seeks a special permit under Use F8 of the Use Table at Section 202.5 of the Yarmouth Zoning Bylaw from the Yarmouth Zoning Board of Appeals (“Board”) in connection with the proposed replacement of its existing liquefied natural gas (“LNG”) storage tank (“Project”) located on the approximately 29-acre property owned by the Company and commonly known as 127 White’s Path in South Yarmouth (“Property”). The site layout and construction plot plans are provided as Appendix A. The Property deed is provided as Appendix B.1 The Property is located in the Business 3 (“B3”) zoning district and the Aquifer Protection Overlay District. To ensure completeness and to the extent that the Board determines that they are needed, the Company also seeks a special permit under Section 406, the Aquifer Protection Overlay District bylaw, and a variance from height limitations under Section 203.4.2 Table of Maximum Building Height. I. Background and Project Need, Scope & Schedule. The Company’s South Yarmouth LNG plant (“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 was placed in-service in 1973 and has operated safely and reliably for over 50 years. It is operating beyond its normal design life, however, and given the critical importance of the Plant to gas system reliability on the coldest winter days, it requires prompt attention by the Company. The 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 rigorous industry safety features that are currently in effect. By letter dated May 16, 2025 (Appendix C), Building Commissioner Grylls determined that the Project qualified as a “public utility” use and would need a Special Permit under Section 202.5(F8). In accordance with Section 103.3.2 of the Zoning Bylaw and at the direction of Commissioner Grylls, the Project completed formal commercial Site Plan Review during a meeting of various Town departments held on December 2, 2025. See Site Plan Review 1 Boston Gas is now the current owner through a series of mergers, as follows: • Cape Cod Gas Co. is the successor in interest by merger to Buzzards Bay Gas Company as of 10/24/1972 ; • Colonial Gas Company is the successor in interest by merger to Cape Cod Gas Company as of 7/30/1981 ; • Boston Gas Company is the successor in interest by merger to Colonial Gas Company as of 3/15/2020 (Articles of Merger recorded with Barnstable County Registry of Deeds in Book 32806, Page 171 and filed with Barnstable County Registry District of the Land Court as Document No. 1393726 ). 2 Comment Sheet and Company responses (Appendix D). Thereafter, the Company presented the Project to the Select Board at its regularly scheduled meeting on December 16, 2025. Subsequently, on February 19, 2026, the Conservation Commission voted to approve the Company’s Stormwater Permit, which it issued on March 3, 2026.2 See Stormwater Management Permit (Appendix E). The Project is imminently needed due to the aging condition of the existing tank. Multiple consultants, including the manufacturer, have concluded that the existing tank should be replaced as soon as practicable. The Project scope is limited to the in-kind replacement of the existing LNG tank and associated equipment. Because the existing tank must remain in-service while the replacement tank is built, the Company must install the replacement tank at a different location and remove trees from that area. Construction of the replacement tank is anticipated to begin in the Summer of 2027 and to be complete in the Fall of 2030. Decommissioning and demolition of the existing tank will follow in the Summer of 2031. II. Special Permit Requirement and Reasons for Approval. The Project requires a Special Permit under one or more of the following provisions of the Zoning Bylaw: • Section 104.3.2(3) – The Plant and the existing tank did not obtain local zoning approval when constructed because the Department of Public Utilities (the “DPU”) exempted the Plant and the entire Property in all respects from local zoning.3 Accordingly, the existing tank should be construed to constitute the extension of a lawfully pre-existing non- conforming structure. The “raz[ing] and replacement” of such structures is an activity requiring a Special Permit under Section 104.3.2(3). • Section 202.5(F8) Table of Uses – In his May 16, 2025 letter, Commissioner Grylls determined that “Absent any modification to existing decisions or a new decision from the Department of Public Utilities, a Special Permit will be required from the Town of Yarmouth Zoning Board of Appeals as required by Table 202.5.” The Company questions the applicability of this provision since it is not establishing a new use, but instead, merely replacing the existing tank. Nonetheless, the Company includes it as part of the special permit request for completeness. 2 The Company has been in regular contact with the DPU Pipeline Safety Division and the Energy Facilities Siting Board (“EFSB”) staff regarding the Project. 3 The DPU, pursuant to its authority under G.L. c. 40A, § 3, has issued two orders that exempted both the Plant and the entire Property from local zoning. (See Final Order, D.P.U. 15972 (January 15, 1969) and Final Order, D.P.U. 15972A & B (November 5, 1971), both attached as Appendix F.) As explained in correspondence with the Town (also included in Appendix F), the Company believes that the DPU orders remain in effect and exempt the entire Property from local zoning projects so long as it continues to be used for LNG purposes. Contrary to that language, the Town’s outside counsel opined that the DPU Orders only exempted the projects proposed at the time. The Company strongly disagrees; however, it submits this application in the interest of avoiding a multi-year proceeding before the Energy Facilities Siting Board for an in-kind replacement project. Should the Board make its own independent determination that the DPU Orders remain applicable, then this application would be unnecessary. 3 • Section 406 Aquifer Protection Overlay District (“APOD”) – Section 406.4 provides that “Uses, except as noted below [and which are not relevant here], within the Aquifer Protection Overlay District shall be controlled by Section 202.5 of the Zoning Bylaw, Use Regulation Schedule, and by the provisions of this bylaw.” In turn, Use F8 of Section 202.5 designates “public utility” uses within the APOD as “BA”, meaning that they are “Permitted only under a Special Permit issued by the Board of Appeals” (§ 202.4). Each special permit is addressed in turn. A. Special Permit to Raze & Replace a Nonconforming Structure Section 104.3.2(3) provides that “Other lawfully pre-existing, non-conforming structures may be altered, extended, razed and replaced by Special Permit from the Board of Appeals if it is determined that: A. the alteration, extension or raze and replacement either: (1.) conforms to the current dimension requirements of the bylaw or does not increase the existing non-conforming nature of the structure, or; (2.) will not be substantially more detrimental to the neighborhood, zoning district, or Town, and; B. the extension, alteration, or raze and replacement will not cause or contribute to any undue nuisance, hazard or congestion, and; C. strict enforcement of the current bylaws would result in undue hardship to the property or its owner.”4 The Project satisfies these requirements: A.(2.) The Project does not introduce a new use to the neighborhood; instead, it involves the replacement of an existing storage tank that has been in operation at the Property safely for over 50 years. Accordingly, the Project will not negatively impact the integrity or character of the district, the adjoining neighborhood, or the Town. B. The razing of the existing tank and the construction of its replacement will not cause or contribute to any undue nuisance, hazard or congestion. Like the existing tank, the replacement tank will be set back a significant distance from the street and abutting properties and will be largely screened by existing vegetation. The replacement tank will be taller, but the Company’s visual impact assessment (Appendix G) demonstrates that the impact will be minor with the top of the tank visible only in limited pockets of the Town that are generally only at distant locations at higher elevations, and not in immediate proximity to the site given the site’s topography and vegetative cover. The Project will not result in any emission of odorous gasses or noise. Outdoor lighting will be mounted at heights that are sufficient and adequate for security 4 This bylaw is generally consistent with G.L. c. 40A, § 6, which authorizes the extension or alteration of pre- existing nonconforming structures subject to “a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by -law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.” 4 and safety purposes and will be installed and directed in a downward angle towards the equipment and facilities, and away from neighboring properties, and, therefore, compatible, and in harmony with, the surrounding properties. All proposed new lighting will be located a significant distance from the nearest public way. The size, type, design, color, height, materials and location of the Project are consistent with industry and Company standards, designs and practices. The Project will not result in any additional traffic congestion, impair pedestrian safety or have other negative impacts on public roadways. The Project will not result in any overload of the public water, drainage or sewer system or any other municipal system. Notably, the Project does not require any environmental permitting beyond a Stormwater Permit that has already been obtained. C. Strict enforcement of the current bylaws would result in undue hardship to the Company and its use of the Property. The Plant and the LNG storage tank serve an essential public purpose for Cape Cod gas customers by ensuring that gas for heating and cooking is available during the coldest days of the year. The Project will proactively address asset condition issues with the existing tank. The Company’s inability to replace the existing aging tank would seriously interfere with its ability to reliably serve the Cape Cod region, which in turn would jeopardize the health, welfare, safety, economic growth and vitality and social welfare of the community, including the Town and its residents and businesses. B. Special Use Permit Under Section 103.2.2, this Board is authorized to grant a special permit upon finding that, “no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town.” The Project satisfies this standard for the same reasons outlined in Section A above. C. Aquifer Overlay District Special Permit The application submittal requirements required under Section 406.5.2 are provided in Appendix H. Section 406.5.3 of the Zoning Bylaw sets for the “Criteria for Approval” of an Aquifer Overlay District Special Permit, as follows: Such special permit shall be granted if the Board of Appeals determines, in conjunction with other town agencies as specified in Section 406.5.4, below, that the intent of this bylaw as well as its specific criteria are met (see section 406.5.5 below). In making such determination, the Board of Appeals shall give consideration to the simplicity, reliability and feasibility of the control measures proposed and the degree of threat to water quality which would result if the control measures fail. Section 406.5.5 provides that “Special permits under section 406 shall be granted only if the applicant demonstrates to the satisfaction of the Board of Appeals that groundwater quality resulting from on-site waste disposal and other on-site operations will not violate federal or state standards for drinking water at the downgradient property boundary.” The Project and Plant satisfy this requirement because the Company does not conduct on-site waste disposal and manages all waste according to applicable state and federal regulations. Notably, the Company 5 has not had a reportable environmental spill at the Plant in over 10 years and on December 1, 2023, the Massachusetts Department of Environmental Protection conducted a multimedia inspection resulting in no enforcement action or legal notice issued. Further, the proposed replacement tank will be full-containment design, meaning that it will have a liquid-tight primary container and a liquid/vapor-tight secondary container, both of which will be capable of independently containing the product stored.5 IV. Requirement for a Height Variance and Reasons for Approval. Section 203.4.2 Table of Maximum Building Height establishes a 35-foot height limitation for “All other structures” in all listed locations. The height of the proposed tank will be approximately 100 feet above grade.6 To the extent that 35 feet is the applicable height limitation, the Company believes that the Board should grant it a dimensional variance pursuant to its authority in Section 102.2.2 and for the following reasons: 1. Literal enforcement of the provisions of this bylaw would involve a substantial hardship, financial or otherwise, to the petitioner or appellant. Literal enforcement of a 35-foot height limitation would render the Project impossible. The inability of the Company to replace the existing tank would result in substantial practical hardship to the Company and to the broader public as it would be impossible as a practical matter to safely and reliably design an LNG tank at the site that would be shorter than 35 feet and meet current industry and federal standards for such equipment. Denial of the variance would mean that the Company either would have to seek judicial review of the decision or a zoning exemption from the EFSB. Either option would take multiple years to resolve. In the meantime, the existing tank would continue to deteriorate and increase the risk that the Company would be unable to serve gas customers on Cape Cod during the coldest days. 2. The hardship is owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures, but not affecting generally the zoning district in which it is located. In addition to the reasons stated above, the Property has been developed and has operated as a critical component of Cape Cod’s gas distribution system for over 50 years. The existing tank and facilities are integrated into the gas distribution system and cannot be moved to another location. These conditions are unique to the Property and its role within the gas distribution network and predate the proposed Project. The hardship arises directly from the physical location of the Property and its integration into the gas system, not from financial considerations or a desire to intensify use of the Property. 5 The full-containment design eliminates the need for secondary containment, such as the existing earthen berm that serves as secondary containment for the existing tank. 6 The precise tank height will be known once the Company’s Engineering, Procurement and Construction vendor completes the final tank design. 6 3. Desirable relief may be granted without either: substantial detriment to the public good; or nullifying or substantially derogating from the intent or purpose of this bylaw. In addition to the reasons stated above, granting the requested variance will not result in substantial detriment to the public good. To the contrary, the public good requires that the existing tank be replaced now. The proposed tank will be located entirely within an established utility site and will not generate traffic, noise, lighting, or emissions. The visual impact analysis demonstrates that the proposed tank’s height will not create adverse impacts to surrounding properties and is compatible with the existing infrastructure context of the site as well as applicable safety standards. The proposed tank height represents the minimum feasible height necessary to achieve reliable system performance. Alternative designs or reduced-height configurations were evaluated and determined to be infeasible for the Property because they failed to comply with requirements that all thermal and vapor dispersion remain within Property boundaries. Locating the tank at the Property allows essential gas infrastructure to continue to be located within a developed utility site, avoiding the need for additional facilities elsewhere. This approach represents the least impactful feasible design and minimizes visual, environmental, and cumulative impacts while meeting operational requirements. The intent of the height limitation is to protect public safety and neighborhood character while ensuring orderly development. That intent will continue to be met, as the proposed tank is located within a long-established utility site. The B3 zoning district expressly allows public utility uses by special permit. Granting the requested dimensional variance will allow the Property to continue to be used for its long-established utility purpose and will remain consistent with the intent of the Yarmouth Zoning Bylaw.