Board of Adjustment upholds city denial of permit for Bath Avenue recycling site

The Board of Adjustment on Wednesday affirmed the city planning director’s denial of a building-permit appeal from Box Law Group on behalf of CFF Recycling, keeping in place the city’s finding that proposed equipment and site work at 100 North Bath Avenue would expand a legally nonconforming scrap operation.

The decision means the applicant must either apply for a special permit from the City Council or seek judicial review; the board voted to affirm the denial after hearing technical testimony from the applicant’s team and lengthy public comment from nearby residents and neighborhood leaders.

Why it matters: The dispute centers on whether replacing a decades-old diesel-powered shear with a newer, electric shear (and associated site work) is a routine modernization of an established industrial use or a change that increases the size, scale or intensity of a nonconforming scrap operation. Neighbors said explosions, odors and dust from the recycling operations have damaged houses and harmed public health; applicants and their engineers said the new machine is quieter and cleaner.

David Box, attorney for Box Law Group, said the company sought an in‑kind replacement of an aging shear and argued the work is a lawful modernization of a preexisting I-3 use. "The shear does not produce noise," Box told the board, distinguishing the shear from the site’s shredder. Box and consulting planners said the electric shear should reduce operating hours and lower noise compared with the existing diesel equipment.

City planning director Jeff Butler and Deputy Municipal Counselor Laura McDevitt countered that the application involved more extensive site disturbance and infrastructure — conveyors, platform structures, a transformer building and paved areas — and that the code’s nonconforming-use rules bar an expansion or a move of the use's footprint. Butler described the proposed conveyor, retaining walls and other site elements shown on the permit plans and said the documentation indicated an increase in operational capacity and intensity.

Residents and neighborhood leaders urged the board to leave the denial in place. Danivetta Davis, president of the JFK Neighborhood Association, summarized neighborhood logs of incidents: "In 2023 we had 23 explosions, 2 industrial fires; in 2024, we had 34 explosions; this year we already had 15 explosions and 6 complaints to DEQ," she said. Other speakers described cracked walls, ongoing air-quality problems and persistent noise, urging the board to prioritize public health and safety.

Applicant representatives, including Mark Zitzow of Johnson and Associates and engineer Caleb Morgan, said there was a history of city approvals for improvements at the site and that discussions with staff had left them expecting a path to permit approval. Counsel for the applicant argued state case law does not allow invalidation of a nonconforming use merely because equipment becomes more efficient.

After board discussion about the meaning of "use" and whether the proposed equipment and associated paving constituted an expansion or a like‑for‑like modernization, a motion to affirm the planning director’s denial carried. The motion was seconded and the board cast votes to affirm the director’s decision.

Next steps and context: Upholding the denial does not permanently bar the operator from trying alternative routes. The applicant may submit a formal special-permit application to City Council, where conditions to address neighborhood concerns could be attached, or pursue judicial review in district court. City staff noted the nonconforming-use provisions exist to allow older uses to continue while enabling gradual elimination of incompatible operations as neighborhoods change.

The board’s ruling focused narrowly on the administrative appeal and interpretation of the nonconforming-use code; several speakers indicated broader concerns about long-standing environmental and health impacts in the surrounding neighborhoods.

Ending note: The board’s decision preserves the planning director’s assessment that the proposed work required greater review than a routine permit swap; it leaves unresolved neighborhood complaints about noise, explosions and air quality, which were the most repeated points in public comment.