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10D-007 91 water st planningQ Z_ 2 m Checked Crz#lr of W art4 a mjx# t �"� � �irlsssxchttsttis -"wool Offirr c:f the �nsprxtoz of'nilbictos 212 Main Street • Municipal Building Northampton, Mass. 01060 COMP„J,.AINT SHEET How received: Telephone( C Personal ` Letter ( X) �,,•„ � B t 11� 0 �tlJ . r Complaint No. Date: / Time: /�I-WA.M• P.M. Telephone No. 584 -5561 Complainant's Name: Raymond W. LaBarge - :;CoUncil.or -Ward Complainant's Address: 24 Wat Complaint received by: 2 12 iW VIOLATIONS OF: Northbmpton, Mass. L) - ,C •-:j K Chapter 44 Zoning Ordinances, City of Northampton ❑ Chapter 802 As Ammended Mass. State Building Code ❑ Sanitary Code, Art.2 Complaint reported against: g Name: Eugene Tac . Tel. - 584-7114 Address: 158 N. Ma le St. Fl orenr-p, MA Location of complaint: 175 Main St., Leeds MA Map # 10T Lot # 17 Signature of Compianants: Nature of complaint: investigation: Yes ( ) No ( ) investigated by: Paul Duclos Building Inspector City of Northampton Wallace J. Puchalski Municipal Office Building Northampton, Massachusetts 01060 Re: Zoning Complaint q c -� 1� �V � kj September 7, 1988 Building Inspector: Pursuant to our conversations over the past weekend, I would like to formally file a Zoning Complaint against the issuance of Buildings P erm it ishmen issued for the construction of a foundation for a Construction Supply. (158 N. Maple St., Florence, 584 -7114) for his property at 175 Main Street in Leeds (Parcel 17, Map 10D of the Northampton Zoning/Assessor's Maps). I believe that the issuat'ice of this Building Permit is in violation of Section 9.3(b.) and in - violation.of the Uecision of the Northampton Zoning Board of Appeals made on August 12, 1987, to which Mie.i1acy. has filed an Appeal. Your response to this complaint at your earliest possible convenience would be greatly appreciated. Respectfully) ymond W. LaB rge City Councilor -Ward 7 MEN _ . Mt l iar air DrPAB�TL' GLrBOanDQG•' IIVSPBCTIDIVS'- MX WAim 81 Mmm:kxd 3m1dmg rTa; m a n - 01060 Wv TACX PERMIT #553 1757 MAIN ST_, LEEDS. 100 = 17 ISSUEI 8/29/88 ZONED SI PAGE'S -12 (Zoning Ordinance) Consuruction Supply Establishment °A" PAGE 1581 (Zoning. Charter) CONSTRUCTION SUPPLY ESTABLIS MENT "A" DEFINITIONS (ZONING. ORDINANCE) CONSTRUCTION SUPPLY' ESTABLIS MENT P6,_ 2.3 (ZONING CHARTER) " " "'PG. 15:4 .ODIENSIONAL &: OENSITY_ PAGE T—T (ZONING.ORDINANCF) ANY PERMITTED USE FRONT DEPTH RAGE 1589 (ZONING' CHARTER) =Y MINIMUM • -� - _ - REIZtlIRID_ 20,000 - 120' 140' ;PRESENT 70,000 SETBACXS REQUIRED ` 29 FRS tSt SIDE 20•' REAF PRESEKr 150 30' 30' - . BUFFER AS REQUIRM PAGE 6_6 ZONING ORDINANCE_ PAGE 1590 SEC_ 6.a ZONING. CHARTER- BOTOW LINE IS: THAT THERE ARE ASKINe M NOTHING NOT ALLOWED: BY RIM r HIM 1 i i t l r r Wr WAS - SPLIT (AS PER- SUGGESTS 7 BY" S_ WEILI AND ZONING' BOARD OF APPEALS CONCURREI -IF LOT WAS DIVIDED. ALL REQUESTS MOULD. BE APPLICABLE DID EMXTHING. POSSIBLE TO APPEASIE MEgMS WISHES_ P-LMNING: BOM = ZONIN& BOARG' OF APPEAU - - -- CITY COUNCIL. (ALL INFAVOR. EXCEF RAYMM LABARfi'c) _; STILL DENIM LL-111f l Mr. 5 i Q i,_ir S. r . ' +ice < - �� :: "- _ .. °��ixc °_��: : �? ° .•::C.�; • ` i.'� � _ .. - i23. The Defendants will not admit paragraph i s Defendants lstate that if a 60 x 60 foot buildin all dimensional requi rements un j 122. The Defendants admit paragraph 22. i 23. were r the Ved„ : bv� right, and if ormingi uses or us authoriz by. special permit or •,,� �d 1 " vr�,�,,,m,,,,, Defendants furt er sta a `fFiair the sketch attached to the February 20 1.987• application for a '' building Permit indicates that the building would conform to the setback requirements of the Zoning ordinance. However, that sketch is clearly not drawn to scale. More .detailed plans would' be required to state that the building would be conforming in all respects. 24. The ;Defendants will not admit paragraph 24. The Defendants state that the construction of.a building whether it was to house the pre- existing non - conforming use or the proposed new use would be an expansion.of said pre - existing non- conforming use. The addition of a new use on the site would also: be such an expansion. • That expansion would require a finding ;in accordance with Section 9.3(8) of the Zoning Ordinance., 1 1 �. i b The Defe ants By Kat lee . , n G. F to Law Departmen City Hall 210 Main Street Northampton, MA. 01060 (413) 586 -6950 `fir _-MW CITY OF NORTHAMPTON MASSACHUSETTS 'Y • CITY HALL 210 Main Street Northampton, MA 01060 LEGAL DEPARTMENT 586.6950 Patrick T. Gleason, Esq. City Solicitor Kathleen G. Failon, Esq. Assistant City Solicitor September 12, 1988 Paul Duclos, Building Inspector Municipal Building Northampton, MA. 01060 Re: Tacy permit Dear Mr., Duclos: The situation as to the Tacy property hinges on- the concept of a. pre - existing non - conforming use- The. property is zoned SI _ Mr.- Tacy operates a construction. yard. on that site, a use which currently requires• a_ special permit iir that zone.. (A "construction: yard" is defined. as. the open storage of raw materials_ and construction. equipment. This use is listed as paragraph 13 under wholesale, Transportation, - and Industrial Uses in Section 5.2 of the Zoning Ordinance -) Under the Zoning Ordinance, this use currently requires. a special permit in the SI zone. However, Mr. Tacy's use was in.place prior to the imposition of the special permit requirement. Therefore, the construction yard is a pre - existing non - conforming use As a pre- existing, non- conforming use, it is subject to special requirements and procedures as set forth in Section 6 of Chapter 40A of the Massachusetts General Laws and Section 9 of the Northampton Zoning Ordinance. The essential. principle to remember. in dealing with a non- conforming use is that any change, alteration,. or extension of that non- conforming use requires the permission_ of the Zoning Board of Appeals. The Board must make a "finding" that the `fti ../ change, alteration, or extension of the non - conforming use is not "substantially more detrimental" to the neighborhood than is the original use. The following activities, among others, have bee defined as a change, alteration, or extension of' a non - conforming use by case law: (1) a increase in the intensity of the use; (2) the construction of a building or an addition to an existing building housing a non - conforming use; (3) the addition of other uses even if those uses are allowed by right. Mr. Tacy applied in 1984 for a finding to allow him to construct a building on the property and to add as an additional use a construction supply establishment, an allowed use in the SI zone. That finding was granted by the ZBA. However, Mr. Tacy failed to apply for a building permit within eighteen months of the decision. Since a special permit or finding lapses in eighteen months if not exercised within eighteen months, the Building inspector denied the permit when Mr.. Tacy finally did apply nearly two years after the grant of the finding. Mr. Tacy then applied to the ZBA for a finding identical to that granted in 1984. During the process, he decided to request a larger building than that described in the 1984 finding. He was allowed to withdraw his application and submit a. revised one showing the larger building on March 4, 1987.. On May 6, 1987, after a. public hearing, the ZBA denied the application for a finding. Mr. Tacy appealed that decision to the courts where it is. awaiting trial at this time. Essentially the issue here is that, since the use on the Tacy property is a pre - existing non - conforming use, Mr_ Tacy cannot expand /alter that use by adding an additional, use, even if that use is allowed in the zoning district, or by constructing a building on the site without the granting of a finding by the ZBA. Since the ZBA has denied that finding, Mr. Tacy cannot be issued a building permit unless the. ZBA' s decision is overturned by the Superior Court. Subsequently, Mr. Tacy submitted a Form A plan to the Planning Board showing the division of the property into two separate lots. Since both portions of the divided lot had sufficient frontage, the Planning Board was required by law to approve the Form A plan. That approval does not, in any way, certify that the lots created are suitable for building. Approval only certifies that the required frontage exists. It had been discussed at one time that Mr. Tacy might solve his problem by dividing the property, moving the construction yard. onto one portion and using the second portion for the allowed use. However, moving the construction yard onto a smaller lot would, again, require a finding by the ZBA since it would change /alter the non- conforming use by intensifying it on that. smaller lot. As of this time, no application for a finding for that purpose has been made. ../ Since the construction yard use is still. present on both portions of the divided property, the situation has not: been altered.. A finding by the ZHA is a prerequisite to the issuance of any building permit.. No building permit should. be issued for the property as: a whole or either of the portions shown on the Form A plan- Very truly yours, � � Kathleen G.. EJal I- I lftp 13 962 MA••ACNU•CTTC OCAL a•T ATC MOgTQ'VAVS00(21N'720 Ay H� 01 KNOW ALL MEN BY THESE PRESENTS, that we, EUGENE A. TACY, JAMES J. TACY, RICHARD J. TACY, HAROLD G. TACY, and HELEN N. TACY, alloF Northampton, Hampshire County, Massachusetts, for consideration paid, grants to GEORGE D. TOBIN and MARGARET W. TOBIN, 2211 • Northampton (Hampshire County) Massachuse ?J,Kimball Street, Florence, with mortgngt rmnnnntn to secure the payment of TWENTY THOUSAND AND NO1100 ($20,000.00)------ payable on demand, ------ - -- Dollars with TEN ( - -- per cent interest, per annum xis )OXXX with TEN (10%) - annual percentage rate payab ( exmxDCemisatbyx-uxsoxUNjKqua r ter ly, , as provided in our one note of even date, thclandin the Village of Leeds, in Northampton, M &Ssachusetts situated on the Easterly side of Main Street, bounded and described as follows: [Description and encurnbmnces, if an)) Beginning at an iron pin on the Easterly side of said Main Street in said Leeds, at the Southwesterly corner of land of McCarthy, as shown on Plan recorded in Hampshire Registry of Deeds, Plan Book 17, Page 68, thence Easterly one hundred (100) feet, more or less, along land of said McCarthy to a corner; thence Northerly along land of the said McCarthy ninety (90) feet. more or less, to a corner; thence Easterly one hundred thirty -five (135) feet, more or less, to land now or formerly of the New York New Haven 6 Hartford Railroad Company; thence Southerly along land now or formerly of said New York, New Haven 6 Hartford Railroad Company to the Mill River; thence continuing in a Southerly dir -ction across said Mill River to the Northerly boundary of Lot #19; thence Westerly along the Northerly boundary of said Lot N19 to Main Street; thence across said highway following the bank of the river to Lot #20 as shown on said plan; thence Southwesterly along the Westerly side of Lot t20 to a point located ten (10) feet distant downstream below the dam; thence Westerly across the said Mill River a distance of ten (10) feet below said dam to land now or formerly of Henry Brushway; thence Northerly along land now of formerly of Henry Brushway to an iron pin situated about ten (10) feet South of an old iron bridge; thence across said Mill River parallel to the old iron bridge and thence across said Main Street to an iron pin on the Easterly side of Main Street; thence Northerly along said Main Street to the point of beginning. Excepting, however, from the above described tract, the highway shown on said plan and designated thereon as Main Street. Together with any and all water privileges and water rights appurtenant to and connected with the above described premises which may have been used or enjoyed now or formerly of the Grantor and together with any and all right, title and interest in an to the dams within the boundaries of the described premises. Subject to all existing water rights. Excepting, the portion of the above described premises conveyed by George G. and Margaret W. Tobin to William E. McCarthy by deed dated June 2, 1976 and recorded in Book 1890, Page 135 of the Hampshire County Registry of Deeds, containing 4,372 square feet, more or less. For our title see a deed from George G. Tobin and Margaret W. Tobin to us recorded just prior hereto in the Hampshire County Registry of Deeds. (• — Joint Tmanb — T."M in Cammoa) -MOO" cpa 79- 33e Ibis wMVV is upon the astu" condition, for any preach of .which the awSsSft &MI have the statutory power of uIc IknS6n Wife of UW WAOSSS". Rftt �.--Iwd and ad of .. ..... ....................... . 7- - - ---------------- - ----- ------------------ ----- - ........ . . --------- ............ .. ... . . ........ . . . . . . . . . ............................. . .. ... . .............. i samoftwwtt of Ma""*Was HAMPSHIRE, AL June 1, 1982 Th- P-wnAHY APPM the Abwft 038 "d EUGENE A. TACY, and wJawwkdgcd the foregoing warumeft to be h i a f deed. e or w ms Patrick J. Mel mhk M.-y k—)WOMIftbam"M w..Lnim @.pim November 5, 1982 Jung I 1911 at I O'clock and 48 min PM, RecId, Ext'd 8 Exam'd. PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 r..-1 September 16, 1988 Telephone 413 - 584 -6750 Kathleen Fallon, Esq. City Solicitor of the City of Northampton City Hall Main Street Northampton, Ma 01060 Chairman of the Zoning Board of Appeals of the City of Northampton City Hall Main Street Northampton, Ma 01060 Paul Duclos Building Inspector of the City of Northampton City Hall Main Street Northampton, Ma 01060 Dear Sirs: Please be advised that I represent Eugene Tacy, the applicant for a permit to construct a Building Supply Establishment on his property on Main Street, Leeds, Massachusetts. As you know, Eugene Tacy previously applied for a permit for a mixed use of the entire three acre Main Street, Leeds, property for use as a Construction Supply Establishment and as a storage facility for his contractor's equipment. This permit was denied for the entire property previously by the Zoning Board of Appeals and whether or not the Zoning Board of Appeals properly denied that permit is the subject of a current pending Superior Court Civil Action. After reviewing the Zoning Ordinance further, and without y5l; T &- WED Mayor David B. Musante 2 01988 City Hall SEP Main Street OFFICE OF PLANNING Northampton, Ma 01060 AND DEVELOPMENT Kathleen Fallon, Esq. City Solicitor of the City of Northampton City Hall Main Street Northampton, Ma 01060 Chairman of the Zoning Board of Appeals of the City of Northampton City Hall Main Street Northampton, Ma 01060 Paul Duclos Building Inspector of the City of Northampton City Hall Main Street Northampton, Ma 01060 Dear Sirs: Please be advised that I represent Eugene Tacy, the applicant for a permit to construct a Building Supply Establishment on his property on Main Street, Leeds, Massachusetts. As you know, Eugene Tacy previously applied for a permit for a mixed use of the entire three acre Main Street, Leeds, property for use as a Construction Supply Establishment and as a storage facility for his contractor's equipment. This permit was denied for the entire property previously by the Zoning Board of Appeals and whether or not the Zoning Board of Appeals properly denied that permit is the subject of a current pending Superior Court Civil Action. After reviewing the Zoning Ordinance further, and without PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 -2- Telephone 413.584 -6750 waiving any claims that Eugene Tacy has as to whether or not he was entitled to the permit for a mixed use of the entire property as previously applied for, Eugene Tacy discussed the possibility of dividing up the parcel of land that he owns in Leeds, with the previous Building Inspector of the City of Northampton and obtaining a Building Permit for the portion of this land that was not used as a Contractor's Yard. The previous Building Inspector, William Nimohay, agreed to issue to Eugene Tacy a Building Permit for a Construction Supply Establishment provided that he subdivided his parcel of land into two legal building lots and abandoned the use of one of the building lots for use as a storage facility for contractor's equipment. Eugene Tacy took action to have the land surveyed and subdivided into two separate parcels of land. In fact, the title to the two parcels of land has been changed and Eugene Tacy no longer has any title to the parcel of land on which contractors equipment is being stored. The parcel of land that he does have title to is completely clear and free from all contractor's equipment or supplies and is a valid separate legal building lot in a Special Industrial Zone under current zoning. It complies with all frontage, set back and other requirements of the applicable Zoning Ordinance and is no longer connected in any sense to the use being made of the separate piece of land upon which contractor's equipment is being stored. The other lot is also a proper lot under current City Ordinances and complies with all frontage set back and other requirements. Mr. William Nimohay agreed to issue to Mr. Tacy a Building Permit for the construction of a Construction Supply Establishment as soon as he removed all of the items of equipment from the lot that Mr. Tacy owned. Mr. Tacy, at great expense, complied with Mr. Nimohay's request and had all vehicles, equipment and other materials removed off the site. Acting in good faith, Mr. Tacy went to the current Building Inspector of the City of Northampton and applied for a Building Permit for his Construction Supply Establishment. That permit was properly issued by the Building Inspector of the City of Northampton. To the best of my'understanding, although I have not PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 -3- Telephone 413.584 -6750 participated in any direct way, nor have I seen all of the letters or other documents that have been circulating among the City Boards, it is my understanding that one or more elected officials of the City of Northampton complained to the Building Inspector that his issuance of the permit to Mr. Tacy was improper. I presume that the complaint that was made by that City Official was a complaint for enforcement of Zoning Regulations pursuant to the provisions of M.G.L. C. 40(a) §7. I believe up to that point proper procedures were followed and anyone being aggrieved by the Building Inspector's enforcement action could thereafter appeal any enforcement decision or granting of any permits to the Zoning Board of Appeals pursuant to the provisions of M.G.L. C. 40(a)§8. I was deeply disturbed and distraught to read in The Daily Hampshire Gazette and the Springfield Union that apparently a Committee of City Officials, consisting of a representative from the Mayor's Office, Zoning Board of Appeals, City Solicitor's Office and Building Inspector's Office met sometime on or about September 14, 1988 to decide the fate of Eugene Tacy's building. I could not believe the report in The Daily Hampshire Gazette so I reviewed the most current copy I have of the Zoning Ordinance of the City of Northampton, Article 10. It still appears under Article 10 that the Zoning Enforcement Officer of the City of Northampton is the Building Inspector only. Further, under Section 10.3 the status of previously approved permits is to be determined by the Zoning Act. I, therefore, concluded that there must have been a change in the provisions of M.G.L. C. 40(a) to allow decisions on permit applications to be made by Committee without the use of the Public Hearing process in front of the Zoning Board of Appeals. To my surprise, M.G.L. C. 40(a) 7 and 8 have not changed and still provide that enforcement action is to be taken by the Zoning Enforcement Officer for the City and that any complaint with respect to any actions taken by the Zoning Enforcement Officer is to be taken by appeal process to the Zoning Board of Appeals. Only after Public Hearing in front of the Zoning Board of Appeals are decisions to be made. There is no provision under our current Zoning Ordinance in the City nor under Massachusetts General Laws that allows decisions to be made by a Committee of individuals even if that Committee consists of Officials of the City. I can not believe that any member of the Zoning Board of Appeals would participate in a decision making process and make an offer of compromise on a PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 -4- ..0V Telephone 413.584 -6750 case that it may hear before the proper Public Hearing process is held. Therefore, I must conclude that the reports in The Daily Hampshire Gazette and The Springfield Union are in error. Eugene Tacy at all stages has followed the proper permit process, including Appeals to the Zoning Board of Appeals and to the Court as dictated by Massachusetts General Laws and I trust that the Officials of the City of Northampton will in good faith follow the same procedures that Mr. Tacy is required to adhere to as well. As to the merits of Eugene Tacy's application for a Building Permit I would suggest that he has complied in all respects with the current Zoning Ordinance with the City of Northampton. The lot that he intends to build on is completely severed by Plan and by deed from the ownership of the land abutting it. It has no pre- existing nonconforming uses or any uses at all existing on it at the current time nor is there any use planned for that parcel of land except the use requested under the current permit request. It confounds me how anyone could suggest that the use to which Eugene Tacy makes of his land on which he wishes to place a building must be controlled by the use to which the abutting parcel of land is made. If the City wishes to eliminate Mr. Tacy's right to build a Construction Supply Establishment on this separate lot it must do so either through the procedure of changing the Zoning Ordinance of the City of Northampton or taking of Mr. Tacy's land by Eminent Domain. A refusal to allow Mr. Tacy to utilize this lot for a lawful purpose that is allowed under the Zoning amounts, in fact, to a taking by Eminent Domain. Dictating to Mr. Tacy that he is not entitled to use that lot for any lawful purpose whatsoever except for a prior non - conforming use is a taking. Mr. Tacy has invested over $70,000.00 in the foundation, planning and building, which has already been purchased, to be placed upon this lot in reliance upon the Zoning Ordinance of the City of Northampton, the Building Permit that was issued and the representations that were made to him by the previous Building Inspector of the City of Northampton. See, for cases in support of Mr. Tacy, Fellsway Realty v. The Building Commissioner Med 332 Mass. 471 (1955 ), Rend v. The Buildina Commissioner of Melrose, 315 Mass. 391 (1944) and `.r - ./ PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 -5- Telephone 413.584 -6750 especially, Castelli v. The Board of Selectmen of the Town of Seekon 15 Mass. App. 711 (1983 ). In conclusion, I would suggest to you that Eugene Tacy will utilize the separate building lot he has for a Construction Supply Establishment distinct and apart from the other parcel of land abutting it for now and in the future and will sign any agreement or representation of that fact as required by any proper City Official. The only caveat to this is that if he prevails in his current pending Civil case now pending in the Hampshire County Superior Court, he may, as an alternative, choose to elect to accept the decision of the Superior Court. V er M elnik PJM /jn cc. Eugene Tacy 32 Lake Street Florence, Ma 01060 I� N... „Ndoo, Application Number: Filed Fee Pd. Rec'd. ZBA Map (s) Parcel ( BY AIDE TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS: 1. Nameof Applicant Raymond W. LaBarge, City Councilor —Ward 7 Address 24 Water Street, Leeds, MA 01053 2. Owner of Property Eucgene Tacy Address 158 North Maple Street, Florence, MA 01060 3. Applicant is: DOwner; ED Contract Purchaser; 0Lessee; OTenant in Possession. X complainant 4. Application is made for: 'l VARIANCE from the provisions of Section page of the Zoning Ordinance of the City of Northampton. E SPECIAL PERMIT under the provisions of Section page of the Zoning Ordinance of the City of Northampton. LNOTHER: Appeal of Building Inspector's issuance of a Building Permi and Decision 5. Location of Property 175 Main St. , Leeds being situated on the easterly side of Main (Leeds) Street; and shown on the Assessors' Maps, Sheet No. 10D , Parcel(s} 7 6. Zone SI 7. Description of proposed work and/or use; Appeal of Building Inspector's Decis of 9/22/88 on a Zoning Violation Complaint filed on 9/7/88 relative to the issuance of Building Permit #553 issued tor the construction of a oun ation 8. (a) Sketch plan attached; D Yes M No (b) Site plan: DAttched X) Not Required MMS MUM ._ -. _ e••- .- GUM 10. Abutters (see instructions; list on reverse side of form). 12. 1 hereby certify that information contained herein is true to the best of my knowledge. Z) f�'!e Date September 23, 1988 ---- Signature INSPECTOR Paul J. Duclos 1s P-09 (rill of edax*,v1Tvt= . �Iaasac(tmetta DEPARTMENT OF BUILDING INSPECTIONS 212 Main Street - Municipal Building Northampton, Maas. 01060 September 22, 1988 Mr. Raymond W. LaBarge 24 Water Street Leeds, Mass. 01053 Dear Mr. LaBarge: `, r 3 W8 DEt'7. 11F Bt1iLD1NG INSPECT1��iS Pertaining to your complaint filed in our office on September 7, 1988, made against Eugene Tacy, 158 North Maple St., Florence, on the property he. owns at 175 Main:Street, Leeds. My feeling is that your complaint is unfounded under.Regulations; Section 9.3b is inappropriate to the building permit that was issued. This is allowed by right to the owners under current - regulations of the Zoning Ordinance for the City of Northampton. ere y, Paul Duclos Buil ing Commissioner PJD /lb pc: Mayor Mr. Tacy City Solicitor Larry Smith ti , o , Paul Duclos Building Inspector City of Northampton' Wallace J. Puchalski Municipal Office Building Northampton, Massachusetts 01060 MWA September 7, 1988 Re: Zoning Complain Building Inspector: 'E OUT OF 8LW-DiNG INS ?EC +10, ! PI1 #MA. D10�i3 Pursuant to our conversations over the past weekend, I would like to formally file a Zoning Complaint against the issuance of Building Permit #553 issued for the construction of a foundation for a Construction Supply. Establisbment_to. Eugene Tacy (158 N. Maple St., Florence, 584 -7114) for his property at 175 Main Street in Leeds .(Parcel 17,. Map 10D of the Northampton Zoning/Assessor's Maps). I believe that the issuance of this Building Permit is in violation of Section 9.3(b.) and in violation.:of the, !Derision of the Northampton Zoning Board of Appeals made on August 12, 1987, to whidh .Mie:v -Tacy hag . filed an Appeal. Your response to this complaint at your earliest possible convenience would be greatly appreciated.. Respectfully, nd W. 4e �� City Councilor -Ward 7 Vt of X =t4UUT#= ,., jlt :asacJ�ua�tta efrus of t4s )nsPut" of Isaimings 212 Main Street • Mun cipal Building Northampton, Mass. 01060 How received: Letter ( X) com" ,;SHEET pq Complaint No. Date: Time: • / A.M. P.M. Telephone No. 584 -5561 Complainant's Name: Raymond W. LaBarge4!Codncilor -Ward 7 Complainant's Address: 24 Wdter Street, T--� =y MA 01051 Complaint received by: d8 '� T ' 212 Nijz;, i s VIOLATIONS OF:' Northbm tan, Mass. 7 Chapter 44 Zoning Ordinances, City of Northampton 0 Chapter 802 As Ammended Mass. State-Building Code 0 Sanitary Code, Art. 2 � ,� 1 NSPECTtQi�IS MA. 010£0 Complaint reported against: Name: Eugene Tacy , Tel. r,84 7114 Address: 158 N. Maple St., Florence, MA Location of complaint: 175 Main St., Leeds, MA Map # ion Lot # 17 Signature of Complanants: Nature of complaint: Telephone ( ) Personal( ) Investigation: Yes ( ) No ( ) investigated by: Northampton Zoning Board of Appeals October 17, 1988 Special Meeting The Northampton Zoning Board of Appeals held a Special Meeting on Monday, October 17, 1988 in Council Chambers, Wallace J. Puchalski Municipal Building, to consider the Appeal of Raymond LaBarge of the Building Inspector's issuance of a Foundation Permit ( #553) to Eugene Tacy for the commencement of construction of a Construction Supply Establishment at 175 Main Street, Leeds. Present and voting were Chairman Robert C. Buscher, Dr. Peter Laband, and William Brandt. The meeting was called to order at 5:12 p. m. Ch. Buscher read the Legal Notice as published twice in the Daily Hampshire Gazette. He also read the Application for the Appeal as submitted by Coun. LaBarge. He cautioned the many members of the public that "This is not a trial of Mr. Duclos," and opened the Public Hearing by asking Coun. LaBarge to speak. He stated, "I believe Building Permit #553 violates Section 9.3(b), and violates the ZBA Decision of August 12, 1987, to which Mr. Tacy has filed an Appeal." Ch. Buscher asked if anyone present wanted to speak in favor of the appeal, and there was no response. Atty. Patrick Melnik rose to speak on behalf of his client, Mr. Tacy. He briefly recounted the chronology of events leading to the present. He mentioned that when he was last before this Board in 1987, Mr. Weil "said the Board would issue a Building Permit if Tacy divided the lot." Ch. Buscher corrected Mr. Melnik by saying, "Mr. Weil said he would, not the Board." Mr. Melnik stated that Mr. Nimohay also told him to divide the lot and he would grant a Building Permit. He said the clear sense was that if Tacy divided the lot into two legal lots, he would get a Building Permit for the lot not encumbered by construction equipment. Tacy then divided the lot. Mr. Melnik said Asst. City Solicitor Fallon wrote that if Tacy had 120' of frontage, and proper setbacks, he could get a Building Permit. "She made that statement before the Court on the Appeal.' Mr. Melnik said that Mr. Tacy had a right to rely on such a statement. Ch. Buscher asked, "When you asked for these admissions, did you specifically ask about abandonment of the contractor's lot ?" Mr. Melnik replied, "He divided the lot, and terminated all construction business activity on the lot where he wants to build his building. Lot 17A, not the adjacent lot, is in question. The lot adjacent is not his - -he has no legal interest in it." Ch. Buscher asked who owned the other lot, and was told, "The Tacy Corporation." Ch. Buscher asked, "Who owns the corporation ?" Mr. Melnik replied, "Members of the Tacy family. Gene Tacy is not connected to the corporation. Richard is President and Director of the corporation. Gene and Jim own Lot 17A. The other lot is owned by The Tacy Corporation, in which Gene has an interest." Mr. Melnik then consulted the Table of Dimensional and Density Requirements, Section 6.2 of the Northampton Zoning Ordinance, and compared the dimensions of Lot 17A to those required by the Ordinance. He said, "As to the use • . '1� ...r Northampton Zoning Board of Appeals October 17, 1988 Special Meeting Page Two wanted on Lot 17A, Construction Supply Establishment, Section 5.12(3) allows this by right. Mr. Tacy has gone through all the hurdles. Mr. Duclos issued him a Building Permit, and I don't know why this has come under such fire. Duclos was obligated to issue this Building Permit. Mr. LaBarge raises 9.3 and he is wrong. Forget the adjoining property - -this is a legal lot." The Chair asked for comments from members of the public who supported Mr. Melnik's position, and the following people spoke: Henry Cabot, Florence: "I feel there are political and personal reasons why this Building Permit was denied." Tom Rockett, 7 Oakland Rd., Leeds: "In the past, there's been a great deal of harassment by elected and appointed officials..." At this point, Ch. Buscher vigorously took Mr. Rockett to task, stating, "I will not let you attack this unpaid Board which doesn't get a goddam cent for serving." Eugene Tacy introduced himself, and said, "I believe I've complied with everything. We stood in the Building Inspector's office with Duclos and Tewhill in August, went over all the paperwork, and the foundation permit was issued. I poured the foundation, got the plans for the pre -fab building and gave them to the Building Inspector. Four or five hours after I received the Building Permit, the Police Dept. came to my door and revoked everything. I find nothing in the ordinance that says I can't build." He then read the definition of "abandonment" from the "Definitions' section of the ordinance. Dr. Laband asked, "Did you discontinue the construction business on both lots ?" "No, just on one," was Mr. Tacy's reply. He then read Section 2.1 of the Ordinance, and added, "I have done everything this book says I must do. If the Board can tell me what I've done wrong, I'll listen. All I'm trying to do is make a living." James MacRostie, 131 N. Maple St., Florence, said, "I think they were 'originally denied on a technicality. Then they found'a technicality to allow them to do what they want. I don't see any reason why they can't use "their property effectively.". Mr. Brandt.asked if those people of the Tacy's property, and the said, "We have to protect the the neighborhood. Mr. Melnik abutter, and there was no disceri who had spoken . lived within 300' general response was "No." He rights of the city at- large, and asked if Mr. LaBarge was an table reply. Kelly Creighton said, "I support the Tacys." Peg Tacy, 32 Lake St., Florence said, "As far as I know, objecting abutters can't prevent something allowed as a matter of .../ Northampton Zoning Board of Appeals October 17, 1988 Special Meeting Page Three right. Am I correct ?" Ch. Buscher replied, "Yes, but is this such an instance ?" Marcia Humphrey, 185 Main St., Leeds said that those objecting to the building didn't understand that when the Chair previously called for those "in favor of the appeal" to speak, that he was referring to those opposed to the building. She stated, "I'm an abutter renting at 185 Main St. for four years. I don't know the legalities, but if the construction equipment business that was on two lots is now on one, it needs a ruling. Many neighbors object, but some don't want to speak out. Mr. Tacy says everyone on Main St. supports him - -not so." Larry Smith, Senior Planner, Office of Planning and Development stated, "The issue is essentially when a nonconforming use on a parcel is squeezed onto half the land, is that an alteration or change of use by intensifying the use ?" Dr. Laband asked, "If we divide the lot and condense the usage on the other lot, we have a new issue. How does that affect Lot 17A ?" Mr. Smith replied, "A Form A does not make any attestation other than there is adequate frontage on a city street. If there is adequate frontage, the Planning Board must sign the Form A. The Planning Board, Kathy Fallon and Ted Tewhill agreed that the Planning Board had to sign it, but we knew there were zoning problems. He referred to and read from Sections 6.3 and 6.4 of the Zoning Ordinance, and presented the Board members with a copy of Miss Fallon's opinion dated Sept. 12, 1988. He added, "They are also in violation of the Site Plan Review Ordinance adopted July 7, 1988, Section 10.11. No one is trying to prevent them from doing what is allowed. He's entitled to either the nonconforming use or the new use, but not both. The "site" to me is the two lots combined." Dr. Laband asked, "If he were to discontinue the nonconforming use on both parcels, the Building Permit would be legal on 17A, right ?" Mr. Smith responded in the affirmative. Dr. Laband continued, "This is 'deja heard' - -we decided that once already. What's new is the subdivided lot." Mr. Melnik interrupted with, "Point of order! LaBarge's appeal is the only issue before us." Ch. Buscher shot back. "Don't be so disingenuous. You know damn well what's going on here. Come on, call a spade a spade. Stop waltzing around the issue." Mr. Melnik replied, "The only thing before the Board is this Building Permit." Ch. Buscher's response was, "This is not a legal lot under 6.3 and 6.4." Mr. Melnik responded, "He has divided the lot. He has abandoned the use. You have a patent bias in this case," and made reference to Ch. Buscher's participation in a meeting requested by the Mayor to mediate the situation. Ch. Buscher replied, "It's part of my job to attend a meeting at the request of the Mayor." Northampton Zoning Board of Appeals October 17, 1988 Special Meeting Page Four Mr. Tacy continued, "When I started applying five years ago..." and then read the definition of "Construction Supply Establishment" from the Ordinance. "That's what I've been doing for ten years. I have construction equipment and I maintain materials there. If you can read that definition, and tell me that's not what I am, I'll listen." He then went into a description of offers he said were made by Coun. LaBarge to buy the subject property. "He offered me $50,000 and that was baloney. Then he offered $250,000 and that was baloney. He tried to take it by Eminent Domain for elderly housing." Ch. Buscher asked, "Is this relevant ?" Mr. Tacy went on, "I have three people in Leeds who heard LaBarge say if he can't buy the land, he'd see that I could never get to use it." Mr. Brandt interceded, defending the Zoning Ordinance as an instrument "that generally works. We are charged with protecting people's rights. Sometimes things aren't black and white. We are not trying to screw you - -we are trying to protect the city." Mr. Tacy asked, "Would the Board agree to this? If I were to turn over all my construction equipment to a construction supply company, would I then be allowed to have that building as a matter of right? If all the stuff I owned was turned over to Tacy Construction Co., could I have my building ?" Coun. LaBarge interjected, "I want to answer Mr. Tacy's statement that I would try to get his land by eminent domain." At this point, all pretense of decorum vaporized and members of the audience began talking and shouting to one another, and Mr. Tacy strode across the room to where Coun. LaBarge was sitting and made a comment about how he was the person who told Coun. LaBarge about Eminent Domain. At this point, Dr. Laband announced, "I will not put up with these outbursts!" Atty. Melnik then stated, "I'll call this a tagalong - -a red herring," referring to the Site Plan Review requirement. "When Tacy applied in August, no one asked for a site plan. After 35 days, the Site Plan review is assumed to be granted." He reads from the ordinance. Ch. Buscher asked Asst. City Solicitor Fallon if she had anything to say. She replied, "If the nonconforming use is wiped off both lots, he can build as a matter of right. There is a procedure in place for site plan review. If he pushed the nonconforming use onto one lot, he needs a Finding. It would be an intensification on one lot. There are also Flood Plain considerations. If he does abandon the nonconforming use, we will need a document stating it will never be resumed." r... Northampton October 17, Page Five Zoning Board of Appeals 1988 Special Meeting Mr. Brandt stated, "Just so there's no question later, are there any reasons to deny besides Flood Plain, intensified use and Site Plain Reviews? Ms. Fallon replied in the negative. Peg Tacy asked if any building over 2,000 SF required Site Plan Review. Mr. Smith replied that single - family homes were exempt. Henry Cabot, 81 North Main St., Florence, stated, "There's a lot less material up there now than last year. What does Lot #1 have to do with Lot #2? I'm confused." Ch. Buscher replied, "A lot of zoning gets into technicalities which many people think are stupid and counterproductive, but the whole engine functions." Marcia Humphrey read from the "Purpose" section of the Introduction to the Zoning ordinance, and said, "I want to speak to the nature of the neighborhood. This is a detrimental change." Mr. Cabot stated there a lot of apartments in the area, and the tenants don't have any rights, just the owner. Helen McCarthy, 185 Main St., Leeds spoke up and said, "I am the owner of that building, and I am definitely opposed." Peg Tacy stated, "What Mr. Tacy wants to do is in back so he can put some of his machinery enhance the lot. There is not going to be a lumber yard." put a building up inside. It will hardware store or A resident of 183 Main Street [whose name was not clearly enunciated and is therefore not known] said, "I look at the property every day. My concern is the lot that's the eyesore. The building would be a good idea if the equipment were gone. I thought there was supposed to be a buffer build." There being no one else with statements to make, Mr. Brandt moved the Public Hearing be closed and the matter taken under advisement. Dr. Laband seconded, and the motion passed unanimously. Ch. Buscher announced to those present that the Decision will be announced at an open meeting - - not a Public Hearing. The meeting adjourned at 6:30 p. M. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. Robert C. 'Buscher, Chairman �.r PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 October 19 , 1988 Telephone 413.584.6750 Robert Buscher Chairman of the Zoning Board of Appeals Municipal Office Building Main Street Northampton, Ma 01060 Re: Eugene Tacy_ = _Appeal of Raymond LaBarge Dear Mr. Buscher: As a follow up to my oral objections to your deliberation on the Tacy matter that I registered at the Public Meeting on October 17, 1988 I am hereby formally requesting that you recuse yourself from deliberation on the Tacy matter and that you order a new Public Hearing to be held which you would not participate in. The reason for this request is not a challenge to your personal integrity, which I and the entire community hold in high regard, but rather the appearance of impropriety that is created as a result of the newspaper articles that have surfaced surrounding the controversy relating to the termination of the Building Inspector. The Daily Hampshire Gazette and I believe the Springfield Union have both reported that you have participated in meetings at the Mayor's office where a discussion and resolution of the Tacy Building Permit was agreed upon by all parties concerned. The Daily Hampshire Gazette and I believe the Springfield Union both reported that you met in this non - public, non - posted meeting at which only City Officials were present to discuss the merits of the Tacy Building Permit Application and as a result of that meeting it was decided that Eugene Tacy would not be entitled to a Building Permit unless he removed his contractor's equipment from both of his lots and not just the lot that is the subject matter of his request for a Building Permit. It also appeared from the newspaper reports that no persons representing Eugene Tacy were present at the meeting when these deliberations took place and the decision was made. As I indicated to you in a previous letter, I do not believe that decision making process was proper and I believe that your participating in the proper hearing procedure after having been a party to these prior deliberations is not correct. M PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 —2— Telephone 413.584 -6750 As you chaired the meeting on October 17, 1988 it was quite obvious that your mind had already been made up and that you consider both of the lots on Main Street that are in this Special Industrial Zone are to be treated as one lot for Zoning purposes even though they have been legally divided and are not currently in common ownership. I believe that any person who is a resident of the City of Northampton and comes before the Zoning Board of Appeals is entitled to a fair hearing before an impartial and unbiased body. It appeared to me at the meeting last night that you had already made a decision as to how you would act with respect to the Tacy Building Permit and if that decision was reached as reported by the newspapers at a closed meeting at the Mayor's Office that puts a cloud on the entire process that should treat all parties fairly. At the very least, the newspaper accounts of your meeting in the Mayor's Office with other public officials to hear only one side of the merits of the Tacy Application and then participating as a Chairman in the decision making process presents an appearance of bias that I believe undercuts and undermines the public confidence in the integrity of the Zoning Board of Appeals. Therefore, I ask you to reconsider your decision to participate in the decision making process with respect to the merits of the Tacy Building Permit and I ask you to remove yourself from deliberations in this matter. I believe that Gene Tacy is entitled to a Hearing before an impartial, open minded, and unbiased board and there are alternate members of the Board who could sit and consider this matter in your absence. j erely, ick J. M nik PJM /jn cc. Mayor David Musante cc. Kathleen Fallon cc. Eugene Tacy IC PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 October 19, 1988 Robert Buscher Chairman of the Zoning Board of Appeals Municipal.Office Building Main Street Northampton, Ma 01060 Re: Eugene Tacy - Appeal of Ray LaB arge Dear Mr. Buscher: Telephone 413584 -6750 As a follow up to my oral objections to your deliberation on the Tacy matter that I registered at the Public Meeting on October 17, 1988 I am hereby formally requesting that you recuse yourself from deliberation on the Tacy matter and that you order a new Public Hearing to be held which you would not participate in. The reason for this request is not a challenge to your personal integrity, which I and the entire community hold in high regard, but rather the appearance of impropriety that is created as a result of the newspaper articles that have surfaced surrounding the controversy relating to the termination of the Building - Inspector. The Daily Hampshire Gazette and I believe the Springfield Union have both reported that you have participated in meetings at the Mayor's office where a discussion and resolution of the Tacy Building Permit was agreed upon by all parties concerned. The Daily Hampshire Gazette and I believe the Springfield Union both reported that you met in this non - public, non - posted meeting at which only City Officials were present to discuss the merits of the Tacy Building Permit Application and as a result of that meeting it was decided that Eugene Tacy would not be entitled to a Building Permit unless he removed his contractor's equipment from both of his lots and not just the lot that is the subject matter of his request for a Building Permit. It also appeared from the newspaper reports that no persons representing Eugene Tacy were present at the meeting when these deliberations took place and the decision was made. As I indicated to you in a previous letter, I do not believe that decision making process was proper and I believe that your participating in the proper hearing procedure after having been a party to these prior deliberations is not correct. ..01, PATRICK J. MELNIK ATTORNEY AT LANV 110 King Street Northampton, MA 01060 .! d i•H ' r{ 1 no= Telephone 413- 584 -6750 � meeting chaired the you As on October 17, 1988 it was Y g quite obvious that your mind had already been made up and that �;a;r,'• you consider both of the lots on Main Street that are in this ,v Special Industrial Zone are to be treated as one lot for Zoning purposes even though they have been legally divided and are not currently : in common ownership. I believe that any person who is esident:of the City of Northampton and comes before the 'Z;arkir�g,;,_.aoard of Appeals is entitled to a fair hearing before an rt�a3.Z,gnd unbiased body. It appeared to me at the meeting that you had already made a decision as to how you '�� " ivulcl'act`th respect to the Tacy Building Permit and if that t l ea ,t t , ' ti i �ft,de,c�.s;or�' vrs :reached as reported by the newspapers at a closed t,�r�g he Mayor's Office that puts a cloud on the entire �gxacess `tbt ;should treat all parties fairly. At the very th�r�ewspaper. :accounts of' your meeting in the Mayor's other,, blic officials to hear only one side of the ,:Tacy<Application and then participating as a �,, Chap rman qtr the ,decision making process presents an appearance f.;,bias. that I believe undercuts and undermines the public onfidence.-in the integrity of the Zoning Board of Appeals. »�* Therefore, I ask you to reconsider your decision to participate in the decision making process with respect to the "' merits of the Tacy Building Permit and I ask you to remove yourself from deliberations in this matter. I believe that Gene Tacy is entitled to a Hearing before an impartial, open minded, 1-7o;'w'. and unbiased board and there are alternate members of the Board who could sit and consider this matter in your absence. i! ;j '.at rie PJM /jn cc. Mayor David Musante cc. Kathleen Fallon cc. Eugene Tacy + p y, J. M lnik .../ ii COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, S.S. EUGENE A. TACY, Petitioner BUILDING INSPECTOR FOR THE CITY OF NORTHAMPTON NOTICE OF APPEAL Law Office PATRICK J. MELNIK 110 King Street Northampton, MAO 1060 413- 584 -6750 Now comes Eugene A. Tacy of 158 North Maple Street, Florence, Massachusetts who states that on or about August, 1988 he filed an application for a Building Permit with the City of Northampton for the purpose of constructing a Construction Supply Establishment on his property located on Main Street, Leeds, Massachusetts, Assessor's Map 10D, Parcel 17A. The property is zoned Special Industrial. The Building Per-nit for the Construction Supply Establishment is allowed by right under the City of Northampton Zoning Ordinances and a Building Permit for the Construction Supply Establishment was issued by the Building Inspector for the City of Northampton. On or about October 7, 1988 the Building Inspector for the City of Northampton, Edward J. Tewhill revoked Permit Number 632 issued on October 7, 1988. No reasons for revocation was given. request for Appeal. On behalf of Eugene A. Tacy I hereby appeal pursuant to the provisions of Massachusetts General Laws, Chapter 40(a), Section 15 from the enforcement action of the Building Inspector revoking the Building Permit. On behalf of Mr. Tacy I contend that the Building Inspector had no right to revoke this Permit and that the Building Permit should be reinstated. Attached to this Notice of Appeal is a copy of the revised application for Variance and Special Permit which I have modified to reflect the October 20, 1988 hived at City Clerk's Office k-w- 0 Da te /��_,� —� j atrick J. Melnik'Esq. 110 King Street Northampton, Ma 01060 584 -6750 W s 40A 14 TO CITIES, • WN& # DI �• Note 14 itory and deck to a restaurant located in a', permit applicant had not met its burden waterfront district, where there was no evidence in that proposed construction in that the owner of the restaurant had complied district would not endanger the-health with the applicable zoning bylaw relating to ty of the district's residents and such parking. Howland v. Board of Appeals of Plym- supported by evidence before trial judgs, outh (1982) 434 N.E.2d 1286, 13 Mass.App. 520. sufficient ground to deny' the`apecial ;; .. Zoning board of appeals was without authority Subaru of New England, Inc. v. Boardi to grant application for special permit to do peals of Canton (1979) 395 N.E.2d 880,1 construction work in watershed protection dia- App. 483. "r•: tat • -aa.. '- :. trict, where applicant failed to satisfy his burden of demonstrating that his proposed use would $ P Po 17. Variances —In general' °;��:• not endanger health and safety of district's resi- ; . h Alt city board of appeals lacked dents or other land within district and failed to ty to allow Proposed balconies on ap satisfy qualifying criteria for permit which a building by virtue' of zoning law_ whieb ' `• peared in zoning bylaw. Stivaletta v. Zoning Bd ted exceptions to front y ard:.setback of - Ap peals of Medfield (1981) 429 N.E.2d 66, 12 meats for ground. story bays. and porcho. Mass.App: 994. ,, . ,,, , may project into any front yard three i ° No one 'has absolute right to a special permit half feet, Superior. Court:properly.' for certain use of land, but, rather, city's board annul the board's decision granting the of appeals has power to deny a permit as long'aa from the front yard setback req ' board's decision is neither, based on legally ua -. more stringent finding8'than were tenable grounds and is not unreasonable, whim- Justify the granting of the variance sisal„ capricious or arhis acs_ S_ 3emble ph,,hm °fie by both bowl and Su"Aw `• '. -. :- RMItY 1ruNt T. Board ul Apyea`s of [ . sum � (1980) 402 N.E.2d 1 W,.9 Masa.App. 477, certiora- Q Y � >�.�fr developers, nOURKI�6 T BOW11 of Al6z i - "�.... A denied 101 S -Ct. 566,449 U.S. 1011; 66 I, Ed.2d Brookline .(1983) 444 NY,2d 943, 15 to 468. 112, review denied 447 ; N•E.?A 870, 1104 16. Findings, ..; special permits • ' �: "''" . town :Finding of town board of appeals that stag- cts frost .._Unless use significantly detra _ �.. _. dards for issuing a special permit for a commer. for the dis P trict„'loeal•discretionary •-- cial ; parking lot in a residentially zoned .'area were variance, all other statutory . elements ' been satisfied, must be upheld; -the rags "i: met was not in excess of board's authority under zoning bylaw and was not the result of of substantial derogation recognizes tht+ s whim or caprice and did not P permit use not, of a variance is to.glvg a landowner a lis?I ,a- contemplated by the bylaw. Garvey v. Board of permit to use his property in a.manner 0 Appeals of Amherst (1980) N.E.2d 880..9, violative of the zoning ordinance and thdr" . I' MassApp 856. variance in particular permits a uve .� I . • ' Finding by board of a ppeals that it could not be determined ordinance prohibits. Cavan$ugli y. 1Nr (1980) 401 N.E.2d 867,. 9 Mass.App, 396. that construction of building in ,:, ; . 0 • • ; flood plain district would not adversely affect ;,; 21. --. Flndingm6, variaeM preservation of flood control characteristics and Boyajian v. Board: of Appesi of lk water. storage g capacity of district, was, in sub . . (1978) 374 N.E.2d 123T,[' -volume] 1 stance equivalent to a determination that special App. 282. ..Jr. 1 . :',its c .o,._i ..IStR.i7` S„ut t*,4.•!, , r .. i.:.... 15. Appeals to per granting suthorittie;,.time; pQayof s rocedu ilk - "' . • Any appeal under section ei ht a pe rmit gra g is na s hall thirty days from the date of the order or on h bein g Pp�ed , The pei : shall file a notice of appeal s -" PPe specifying the grounds thereof, with +'the city: or town:,; and a copy of said notice, including the date and time of filing certified by the to wt { shall be filed forthwith by the petitioner with the officer or board whose order or dt " •' ::t ,; .,. „__ . is being a p granting authori apecifying' g PPealed and to the permit g in the notice g for such appeal. Such officer or board shall forthwith transmit .to the board of appr zoning administrator all' docum a P pars constituting the 'recoil of the e 4 h the which ap ... peal is taken. � 1 •" , • . .._ ., r. A ny'appeal to a board of appeals from the order or decision of Bonin adminig if any,'appointed in accordance with section thirteen g shall be taken.within thirty d� the date.of such order or decision or within thirty days from the.d$tQ which therm application or petition in question shall have been .deemed denied accordance wid 6 - - section thirteen, as the case may be, .by having _in, the. petitioner- file.a. notice of 1?' r.Ytown clerk specifying the grounds thereof with the city ol�andva.:co pys of said 42 i W DECISION OF NORTHAMPTON ZONING BOARD OF APPEALS At a meeting held on November 2, 1988, the Zoning Board of Appeals of the City of Northampton voted to sustain the Appeal of Raymond LaBarge of the issuance by the Building Inspector of Foundation Permit #553 to Eugene Tacy for the commencement of construction of a Construction Supply Establishment at 175 Main Street, Leeds. Present and voting were Chairman Robert D. Buscher, Dr. Peter Laband, and William Brandt. The findings were as follows: The property is zoned Special Industrial. Prior to the division of what was Parcel 7 of Sheet 10D of the Northampton Assessor's Maps, the entire parcel was used as a construction yard. A construction yard use in an SI Zone requires a Special Permit. Since the construction yard use of the site predates the Special Permit requirement, it is a pre- existing, nonconforming use, and as such, is regulated by Chapter 40A, Section 6 of the Massachusetts General Laws, and Section 9 of the Northampton Zoning Ordinance. Chapter 40A states that a pre- existing, nonconforming use may be changed, altered, or expanded only after a Finding by the Zoning Board of Appeals that the change, alteration, or expansion is not substantially more detrimental to the neighborhood than the current use. [Section 9.3(b), Northampton Zoning Ordinance]. Applicant proposes to build a 60' x 60' building on the property, and to use that building to house a construction supply establishment, an allowed use in a Special Industrial Zone. Applicant's original application for zoning relief in 1984, and the 1987 application, indicated that the building would be used both for the nonconforming use (repairing and storing equipment), and the proposed new use. The application for which a permit was granted in 1988 indicated that the building would be used only for the construction supply establishment. If the nonconforming use is still present on'the lot, the addition of either a building or a new use, even if that use is allowed, is an expansion of that nonconforming use and requires a Finding by the Zoning Board of Appeals that the proposed use is not substantially more detrimental to the neighborhood than the existing use. ../' DECISION OF THE NORTHAMPTON ZONING BOARD OF APPEALS IN THE MATTER OF THE APPEAL OF RAYMOND LABARGE OF THE ISSUANCE OF A BUILDING PERMIT TO EUGENE TACY. PAGE TWO. The Planning Board did in fact approve an "Approval not required under the subdivision control law" for the divided site. The only zoning issue resolved by the approval of such a plan is that each lot, as created in said plan, has sufficient frontage for that zoning district. It does not give any guarantee that the lots will qualify as building lots. Section 6.4 of the Northampton Zoning Ordinance states that "No lot ... may be divided so as not to conform with a provision of this ordinance. No group of lots in a common ownership may be separated or the ownership of one or more lots changed so as not to be in conformance with a provision of this ordinance." The pre- existing, nonconforming use has been shifted to a fractional portion of the original lot, thereby intensifying that use, which is an alteration which requires a Finding by the Zoning Board of Appeals. Until the issue of the intensification of the nonconforming use on one lot is resolved, neither of the two lots shown on the "ANR" Plan conform to the Zoning Ordinance. The Building Inspector's issuance of the Foundation Permit ( #553) was erroneous. Robert C. uscher, Chairman C Dr. Peter Laband William Brand `.. "No TACY PROPERTY The following is a chronological history of the zoning issues which have appeared during the Tacys' attempt to construct a building on their lot on Main Street in Leeds. A legal explanation of the issues follows the history. In 1984, Tacy is operating a contractor's yard (open storage of raw materials used in construction) on the site. That use at that time requires a special permit in the SI district. The use, however, by Tacu and his predecessors, predates the permit requirement so it is considered a pre- existing non - conforming use. 1. September 21, 1984 Tacy files his first application for zoning relief to the ZBA. It is a request for a finding under Section 9.3(B) of the Zoning Ordinance to permit expansion of his non - conforming use by (1) constructing a 40 X 44 foot, one story building and (2) by adding a new use, that of construction supply establishment. 2. November 28, 1984 The ZBA votes to grant a "special permit" to Tacy to construct the building and allow the new use. It appears the ZBA may have granted improper relief since the application to the board asked for a "finding" and the board cannot grant relief which has not been requested. The point is moot, however, since Tacy did exercise the permit within eighteen (18) months as required and so the permit expired by operation of law. 3. January 20, 1987 Tacy applies to the ZBA for the same relief requested in the September 21, 1984 application. 4. February 18, 1987 The ZBA holds a public hearing on the January application. It is discovered that Tacy is actually requesting a 60 X 60 foot building rather than the 40 X 44 foot one previously requested. The ZBA allows Tacy to withdraw the application. 5. March 4, 1987 Tacy files a new application asking for a finding for the addition of the construction supply establishment use and the construction of a 60 X 60 foot building. M ../' 6. April 15, 1987 Tacy files an application for a building permit for the 60 X 60 building with the Building Inspector. 7. May 6, 1987 The ZBA denies the March 4, 1987, request for a finding. 8. May 22, 1987 Tacy files an appeal of the ZBA denial of the request for a finding in Superior Court. 9. June 12, 1987 Tacy files an appeal to the ZBA from the Building Inspector's refusal to issue a building permit on the April 15, 1987 application. 10. August 12, 1987 The ZBA votes to uphold the Building Inspector's refusal to issue a building permit on the April 15, 1987 application. 11. August 19, 1987 Tacy submits a ANR application to the Planning Board. The ANR plan divides the Leeds site into two parcels. Since both parcels have the required frontage for the zone, the plan is approved. 12. October 6, 1987 Tacy amends his Superior Court complaint to include the August 12, 1987 decision of the ZBA. 13. August 29, 1988 Tacy files an application for a building permit with the Building Inspector. It requests a permit for construction of a 60 X 60 building for use as a construction supply establishment on the easterly lot shown on the ANR plan. The foundation permit is issued the same day. 14. September 7, 1988 Councillor LaBarge files a complaint with the Building Inspector alleging that the issuance of the foundation permit on August 29, 1988, was improper. 15. September 22, 1988 The Building Inspector replies to Mr. LaBarge's complaint stating that the permit was correctly issued. 16. September 23, 1988 Mr. LaBarge files an appeal to the ZBA on his complaint to the Building Inspector. 17. October 3, 1988 The Building Inspector issues a building permit for the Tacy site even though he acknowledges he has been told that, at the very least, the construction requires site plan approval by the ,`, Planning Board. ../' 18. October 17, 1988 The ZBA holds a public hearing on Mr. LaBarge's complaint. ZONING ISSUES A. THE ORIGINAL NON - CONFORMING USE. The Tacy property is zoned Special Industrial. Currently, a construction yard use in an SI zone requires a special permit. Since the construction yard use of the site predates the special permit requirement, it is, therefore, a pre- existing non- conforming use. Non - conforming uses are primarily regulated by Chapter 40A, Section 6, of the Massachusetts General Laws and Section 9 of the Northampton Zoning Ordinance. Chapter 40A states that a non- conforming use may be changed, altered, or expanded only after a finding by the Zoning Board of Appeals that the change, alteration, or expansion is not substantially more detrimental to the neighborhood than the current use. This state statute is echoed in Section 9.3(b) of the Northampton Zoning Ordinance. B. THE PROPOSED CONSTRUCTION. Mr. Tacy proposed to add (1) a 60 X 60 foot building to his property, and (2) to use that building to house a construction supply establishment, an allowed use in an SI zone. Mr. Tacy's original application for zoning relief in 1984 and the 1987 application indicated that the building would be used both for the non - conforming use (to repair and to store equipment) and the new proposed use. The application for which a permit was granted in 1988 indicated the building would be only for the construction supply establishment. If the non - conforming use is still present on the lot, the addition of either a building or a new use, even if that use is allowed, is an expansion of that non - conforming use requiring a finding by the ZBA. C. THE DIVISION OF THE LOT. The Planning Board did approve an "approval not required under the subdivision control law" for the Tacy site. The only zoning issue resolved by the approval of such a plan is that each lot as created in said plan has sufficient frontage for that zoning district. It does not give any guarantee that the lots will qualify as building lots. Mr. Tacy has stated that he has moved the non - conforming construction yard use to the westerly lot shown on the ANR plan and that it is no longer present on the easterly lot on which the building is being constructed. If this is the case, there are '*.. .../ still two problems outstanding. First, if the construction yard use has been moved onto a smaller lot, that is an alteration of the non - conforming use by intensifying it. This would require a finding by the ZBA. Second, Section 6.4 of the Zoning Ordinance states that no lot may be divided if such division causes the lot not to conform with the provisions of the Zoning Ordinance. Therefore, until the issue of the intensification of the non - conforming use on one lot is resolved, neither of the two lots shown on the ANR plan conform to the Zoning Ordinance. There remains the subsidiary issue of confirming that the non- conforming use has, indeed, been moved from the easterly lot. It would seem some sort of written document from Mr. Tacy to that effect should be required. `*we ..v' Northampton Zoning Board of Appeals November 2, 1988 Meeting The Northampton Zoning Board of Appeals met at 7:00 p. m. on Wednesday, November 2, 1988 in Council Chambers, Wallace J. Puchalski Municipal Building, to announce a Decision on the Appeal of Raymond LaBarge of the Building Inspector's issuance of a Foundation Permit ( #553) to Eugene Tacy for the commencement of construction of a Construction Supply Establishment at 175 Main Street, Leeds. Present and voting were Chairman Robert C. Buscher, Dr. Peter Laband, and William Brandt. Dr. Laband moved the minutes of the October 17, 1988 Meeting be accepted without reading. Mr. Brandt seconded, and the motion passed unanimously. Ch. Buscher summarized the chronology, substance and facts of the case. He said that Atty. Melnik's position is that the building in question is allowed by right once Tacy moved the construction equipment to the other lot, and "One ought to be able to use one's lot for what is allowed under the Zoning Ordinance." Ch. Buscher went on, "At first blush that's a very appealing proposition, but Mr. Tacy stumbled over an obscure and technical provision of the ordinance by intensifying the use on one parcel, and violated Section 6.4 which states, 'No lot ... may be divided so as not to conform with a provision of this ordinance. No group of lots in a common ownership may be separated or the ownership of one or more lots changed so as not to be in conformance with a provision of this ordinance.' What Mr.-Tacy did was subdivide an existing lot that had a pre- existing nonconforming use on it, and shifted that use to a fractional portion of that lot. The division of the lot is not in compliance with the Zoning ordinance, even though he has a perfect right to divide the lot." Ch. Buscher went on to describe what he saw as Mr. Tacy's three alternatives: 1) He can seek a Finding for the fractional part of the lot where he conducts his previous business more intensively, 2) abandon the pre- existing nonconforming use entirely and then use either or both lots for what's allowed, or 3) continue with the pre- existing nonconforming use and abandon the erection of the building. "This is obscure and frustrating to Mr. Tacy, but I would vote to uphold Mr. LaBarge's appeal." Mr. Brandt stated, "I too will vote in favor of allowing the appeal of Mr. LaBarge. Moving the pre- existing, nonconforming use to a smaller lot intensifies the use, therefore he needs a Finding. The construction supply business is allowed by right, but the equipment business is not. Mr. Tacy does not run his business in a vacuum. I will support the Building Permit the day he abandons the equipment use." Dr. Laband said that he also agreed as to the intensification issue, and the division of the lot being "against 6.4." He felt that Assistant City Solicitor Fallon's four page summary and opinion should be made part of the Decision, and finally, "I M Northampton Zoning Board of Appeals November 2, 1988 Meeting Page Two agree the Building Inspector's action was erroneous." Mr. Brandt moved to uphold the Appeal of Mr. LaBarge, Dr. Laband seconded and the motion passed unanimously. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary, Robert C. Buscher, Chairman Rec'd in City Clerk's Office - November 22, 1988 T PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 November 22 7900 City of I?orthampton City Clerk City Hall 212 Main Street Northampton, Mass. 01060 NOTICE OF APPEAL OF DECISION OF THE ZONING BOARD OF AP Dear Sirs: Telephone 413- 584 -6750 Please be advised I represent Eugene Tacy and James J. Tacy owners of property located on Main Street in Leeds, Hampshire County, Massachusetts. They have filed an appeal of the decision of the Zoning Board of Appeals for the City of Northampton which decision was filed on November 15, 1988. A complaint has been filed in the Hampshire County Superior Court, and a copy of the complaint filed in Hampshire County Superior Court is attached to this Notice of Appeal. A copy of the decision of the Zoning Board of Appeals to which the complaint refers to is attached to the complaint which was filed in the Hampshire County Superior Court, and is also appended to this Notice of Appeal. This Notice of Appeal is provisions of M.G.L. Chapter PJM /dfk Enc. filed with you pursuant to the 40A, Section 17. S nc rely, trick J. Melnik CO AMONWEALTH OF'7fASSACHUSETTS HAMPSHIRE, SS. EUGENE A. TACY, AND JAMES J. TACY, V. CITY OF NORTHAMPTON, , Plaintiff (s) , Defendant (s) To the above -named Defendant V4UVC111UCt L7j, at 2 :10 p.m. Superior Court Department of the Trial Court of the Commonwealth Civil Action �• :: 1 SUMMONS You are hereby summoned and required to serve upon Patrick J. Melnik Esq. , plaintiff s' attorney, whose address is 110 King Street, Northampton, Massachusetts , an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Northampton, either before service upon plaintiffs' attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiffs' which arises out of the transaction or occurrence that is the subject matter of the plaintiff s' claim or you will thereafter be barred from making such claim in any other action. Witness, THOMAS R. MORSE, JR., Esquire at Northampton, the eighteenth day of November , in the year of our Lord one thousand nine hundred and eighty— eight. CLERK- MAGISTRATE NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption. If a separate summons is used for each defendant. each should be addressed to the particular defendant. 3. Circle type of action involved. Tort — Motor Vehicle Tort — Contract — Equitable relief. �� Ce ' r F r NIM/ .0/ COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, S.S. DEPARTMENT OF THE TRIAL COURT SUPERIOR COURT DIVISION CIVIL ACTION NO. g -3.S ) Law Office PATRICK J. MEL NIK 110 King Street Northampton,MA 01061 413- 584 -6750 EUGENE A. TACY and JAMES J. TACY, Plaintiffs Jointly seeking one Recovery v. COMPLAI.1 T BUILDING INSPECTOR FOR THE CITY OF NORTHAMPTON EDWARD J. TEWHILL , CITY OF NORTHAMPTON 'CTIlIG THROUGH ITS ZONING BOARD OF APPEALS AND ITS MEMBERS, NAMELY DR. PETER LABAND OF 40 NORFOLK AVENUE, NORTHAMPTON, MASSACHUSETTS WILLIAIM BRANDT OF 314 SOUTH STREET, NORTHAMPTON, MASSACHUSETTS ROBERT C. BUSCHER, 54 HILLSIDE ROAD, NORTHAMPTON, MASSACHUSETTS AND THE CITY OF NORTHAMPTON Defendants COUNT I APPEAL OF THE ZOIvING_BOARD QF.._APPEALS OF THE _CITY OF NORTHAMPTON-, . MASSaCHUS_ETTS UNDER THE .. POVISI011S OF M sSACHUSETTS_GENERAL LAWS, CHAPTER_40.(A)_ , __ SECTIOIT_1 1. The Plaintiff Eugene A. Tacy and James J. Tacy are residents of the City of Northampton and are the owners of property located on Main Street; Leeds, Hampshire County, :Massachusetts, which property is the subject of this Complaint. 2. The -City of Northampton acting through its Zoning Board of Appeals and its members, namely Dr. Peter Laband of 40 Norfolk Avenue, Northampton, William Brandt, 314 South Street, Northampton and Robert C. Buscher of 54 Hillside Road, Northampton and the Building Inspector for the City of 1•iorthampton, Edward J. Tewhill, are the Defendants herein. The City cf Northampton is the Defendant in this Count and each and every Count in this Complaint. 3. The Plaintiffs, Eugene A. Tacy and James J. Tacy, tcaether with other members o� their family, were the owners of a certain tract or parcel of land which they acquired on June 1, 1982 from George D. Tobin. The Plaintiffs and other members of their family applied for a Special Permit and a Use Permit to allow the use of the entire premises for the open storage of raw materials and as a Construction Supply Establishment at various times beginning in September of 1984 and continuing until June of 1987. The premises are in a Special Industrial Zone in the City of Northampton and the use of the premises as a Construction Supply Establishment, the use which is sought by the Plaintiffs herein, is a use allowed by right in that Zoning District. 4. The Building Inspector of the City of Northampton has denied the use of the premises as a Construction Supply Establishment as lona as the premises are used in connection with the operation of the business of Tacy Excavating Construction Company, Inc. as a Contractor's Yard. 5. The Plaintiffs in this action and their predecessors have previously used the premises as a Contractor's Yard for the open storage of raw materials and construction equipment which is a use allowed by Special Permit in this District. The Plaintiffs have contended through the Building Inspector and the Board of Appeals for the City of Northampton that they either have a pre - existing non - conforming use of the premises for the open storage of raw materials and construction equipment or that they were granted a Special Permit for this use as a result of an application for a Special Permit filed on September 21, 1984. 6. The merits of the contentions of the Plaintiffs with respect to the operation of the premises as a Contractor's Yard and the merits of whether or not the Plaintiffs in this action are entitled to a permit for the use of the premises as a Construction Supply Establishment or. the entire premises is the subject of a previous Civil Action filed in this Court, Hampshire County Superior Court, Civil Action No. 87 -138. The Plaintiffs have also contended in Hampshire County Superior Court, Civil Action No. 87 -138 that they are entitled to the use of the premises as a Construction Supply Establishment only for the entire premises even if they are not entitled to use Law Office the entire premises jointly as a Construction Supply PATRICKJ.MELNIK Establishment and as a Contractor's Yard. The Plaintiffs 110 King Street had previously applied for the use of the entire parcel for a Construction Supply Establishment. This was denied vorchampton,MA01060 by the Zoning Board of appeals and that denial is also an issue that is the subject of Superior Court, Civil Action 413- 584 -6750 No. 87 -138. 'kmal- ! Subsequent to filing the previous Civil r -ctiOn in tnip _Matter P,'hlch deals with the use of the premises L ?lr entirety for use as either a Construction Supp1'_" Establishment only or together with their pre - existing non - conforming use or use allowed by Special Permit as a Contractor's Yard, the Plaintiffs herein subsequently divided their land into two separate lots under City Zoning. Law Office PATRICK J. MELNIK 110 King Street Northampton, NIA 0106( 413 - 584 -6750 The premises originally consisted of a tract of lard of more than two acres. The Plaintiffs, by a Plan prepared by Almer Huntley Jr. & Associates, Inc. dated July 22, 1987 which is recorded in Hampshire County Registry of Deeds in Plan Book 148, Page 88, divided the large tract of land into two separate parcels. The Plan was presented to the Plannina Board for the City of ldorthampton and was approved as a plan not requiring subdivision approval and was recorded in the Hampshire County Registry of Deeds. Both parcels of land shown on the aforesaid Plan of Land are in the Special Industrial Zone. Both parcels of land have more than minimum lot size, width, fronrage and i n all respects co-ply with the dimensional requirements of the Zoning ordinance of the City of Ilortharpton. 9. The land that is the subject .ratter of this dispute is land that is located as the most Wortherly lot sho Dn the Plan recorded in the Hampshire County Reaistr1,* of Deeds in Plan noon: 145, Page 88. This parcel of lard is owned by James J. Tacy and Eugene rk. Tacy individually as described in a deed dated September 10, 1983 recorded in Hampshire County Registry of Deeds in Book 3261, Paae 243. The other parcel of land, which is the more Southerly parcel of land abuttina the Hill River, is paned by Tacy Excavating and Construction Ccmpany, Inc. as shown on a deed recorded in Hampshire County ReaistrY Of Leeds in Book 3261, Paae 242. 10. The Plaintiffs in this action have entirely ai:andonad the us- of the Northerly lot `or all uses pursuant to the request by the Building Inspector for the City of Northampton. li. The previous Building Inspector for the City of 1lortha:^pton, William 11imohay, advised the Plaintiffs herein that if they completely removed all of their construction related equipment.and materials from the site on which they wish to construct the Construction Supply Establishment, that he would, in fact, issue a Buildina Permit for the Construction Supply Establishment on the separate legal building lot. '2 Based upon that representation and in reliance thereon the Plaintiffs herein removed all trucks, equipment, supplies and materials from the site that is the subject matter of Law Office PATRICKI MELNIK 110 King Street WrAampWW MA 01060 411 5844750 ,`, —4— ../ this dispute, excepting only those materials that were actually going to be used in the physical construction of the building to be constructed on the premises. 13. Subsequently, in August of 1988 the Plaintiffs in this action filed an Application for a 3uilding Permit for a Construction Supply Establishment on the divided parcel of land that was now free of all supplies and equipment and which had been abandoned by the Plaintiffs for use as a Contractor's Yard for purposes of obtaining a Building Permit as a Construction Supply Establishment. 14. Use of the premises as a Ccnstruction Supply Establishment is a use allowed by right under City Zoning and the lot upon which the Construction Supply Establishment was sought to be constructed complied in all respects with the dimensional requirements of the City of Northampton. 15. Based upon the application of the Plaintiffs in this action for the Building Permit, the then Building Inspector for the City of Northampton, Paul Duclos, issued a Foundation Permit for the Construction Supply Establishment, which Foundation Permit was Building Permit Number 553. 15. Based upon the issuance of the Foundation Permit the Plaintiffs in this action proceeded to pour a foundation for the Construction Supply Establishment on the premises. Subsequent to the pouring of the foundation a City Counsellor for the City of Northampton, namely Raymond W. LaBarge, filed a Complaint with the Building Inspector on September 7, 1988 requesting that the Building Inspector revoke the Foundation Permit. A copy of the Complaint filed by City Councillor, Raymond W. LaBarge, is attached to this Complaint and marked Exhibit "A ". 17. Prior to the scheduling of a :fearing before the Zoning Board of Appeals on the validity of the issuance of the Foundation Permit. the Building Inspector of the City of Northampton, Paul J. Ducics, met with the Mayor for the City of Northampton and Robert C. Buscher, Chairman of the Zoning Board of Appeals of the City of Northampton, to discuss the Plaintiff's Permit Application. As a result of that meeting the hayor of the City of Northampton and the Chairman of the Zoning Board of Appeals instructed the Building Inspector for the City of Northampton to revoke the Foundation Permit that had been issued to the Plaintiffs. In a letter dated September 15, 1988 the Building Inspector for the City of Northampton revoked the Building Permit that had been previously been issued. A copy of the revocation of the Building Permit is attached to this Complaint and is marked Exhibit "B ". ,kmal- -"/ - Law Office PATRICK J. MELNII 110 King Street Yorthampton,MA 0106 413- 584 -6750 L3. lie ver the less, on SePr --ber 16, 1988 the Building inspect or the City of PTortha -npton reinstatea the Building Pe r m it that had been issued to the Plaintiffs in this action_. Subsequently, on October 17, 1988 the Zoning Board of Appeals heard the Complaint filed by Counsellor LaBarge d ation Permit for the concerning s understhanPro�isionsFofilassachusetts General Plaintiff Laws, Chapter 40A. the Zoning 19. At that Hearing, Robert C. Buscher, C the closed Board of Appeals, who had previ s sat meeting between the P of the City of N ch ie th himself and the Building Inspector, at w time Tacy t it, Building Inspector ' %as ordered to revoke the r :. sat as the Chairman of the Zoning Board of appeal= on the ot n B Permit that determination of whether or niiffswasproper. had been issued t 20. At the Hearing the Plaintiffs objected to Robert Buscher sitting as the Chairman of the Zoning Board of �Ppeals or hearing any testimony concerning the validity of the permit inasmuch as he had previously sat and rendered an opinion at an unnosted non- public meeting betweenctie to Mayor and the Building Inspector.* .g A r; ta n o n 19, his consideration on this matter as filed 1988 with the Chairnan of the Zoning BoardMplaintV and n copy of that letter �_ attached to t.h._ s C`.,, marked Exhibit " C " - 21, Subsequently, at a meeting held on iTOve-ber 2, 1988 the Zoning Board of nppeais voted unamiouslY to uphold the Appeal filed by Raymond W. LaBarge requesting the Building Inspector to revoke the Foundation Permit that had been issued to the Plain ti�L the decision of the Zoning Board of Appeals is 2 A COPY Of nd marked Exhibit to this Complaint a D 23. The Plaintiffs in this action allege that the dec�8s of the Zonina Board of Appeals dared ITovemb2r 1�, teals and exceeds the authority of the Zoning Board of App" that th is erroneous. The Plaintiffs, thereforeSLlpc2annullcdc decision of the Zoning Board of Appeals u and that the action of the Building Inspector in issuing a Building Permit for the Plaintiffs be upheld. II 24 COUNT - - THE DISOUALIF.IC;.TI.OIT_OF__T' -fiE CH3IRI- IANOF_THE ?MT11M BOARD OF APPE_'.LS The Plaintiffs restate each and every paragraph of this Complaint as if originally restated herein. N%,W, 1.00, -6- 2S. The Plaintiffs stars that the Chairman cf *_ = I -Ain' Bo' -rd of Appeals sat at a closed unpublished neeri n_, at a decision concerning the propriety of the issuance cf the Building Permit was decided and the Chairman and th e Zoning Board of Appeals instructed the Building Inspector ri to revoke the permit. This meeting was held p or to the public hearing on this matter. 26. The Chairman of the Zoning Board of Appeals who sat ar the public hearing had previously made up his mind as to his decision as to the propriety of the issuance :�f the building permit and participated in the public meaning of the Zoning Board of Appeals on October 17, 19SS , a biased predisposition. His bias and his opi ^,on Frith respect to the validity of the issuance of the Buildina Pernnit was apparent in both his rulings and conduct during the public hearing. 27. The Plaintiffs in this action allege that decision cf the Zoning Board of Appeals was actually influenced i:y the Chairman of the Zonina Board of Appeals who vosed in favor of the Appeal filed by Councillor LaBarge and -hat rh= decision of the remaining members of the Zoning Board of Appeals was influenced by the actions of the Chairman. 28. The Plaintiffs allege that they did not receive a fair and impartial hearing * an open minded and i::iparri 1 deliberating body at the time that the decision � -ras made with respect to the propriety of the issuance of the Building Permit for their Construction Supply Establishment. 29. Therefore, the Plaintiffs allege that the decision of the Zonina Board of Appeals was improperly made, and that they did not receive a fair and adequate hearing before an impartial deliberating body and that they are entitlad at" a minimum to a new hearing on the propriety of the issuance of :he Building Permit to them, The Plaintiffs also allege that they have lost money as a result cf this conduct for whi they should be reimbursed. COUIT7 __III. DAiSAGES FOR EMINENT _DOIL?iI�,a Law Office PATRICK J. MELNIK 110 King Street lorthampton, MA 01060 413- 584 -6750 30. The Plaintiffs restate each and every Paragraph of this cc- plaint as if originally restated herein. 31. The Plaintiffs state that they have abandoned the use of their property for all uses and are seeking a use for the parcel of land that is the subject matter of this dispute f use as a Construction supply Establishment which is a use allowed by right under City Zoning. „%RW .010, Law Office PATRICK J. NIELNI1 110 King Street vortharapton,MA 010E 413- 584 -675 that the B it n . a Lnspector for 33. The Plaintiffs state u �- - - - or City of Tlorthampton, and the scnin :� Board o_ =.p ears the City of llorthanpton are rerusina ro allow the A to use their property =cr a use t:,aL is them as of right. 33. The Plaintiffs, therefore. state L_'at if the City cf ` Nor thampton wi not allow th Plainti t0 11se Lh a— — property for any lawful use -•rhich is allowed by right under City Zoning that they haa'e e ffectively taken t':e property from the Plaintiffs and the Plaintiffs are, therefore, entitled to compensation from the City of Northampton for the full and =air market value of the property. 3g. The Plaintiffs state Lhat they 'nave met all of the b he rules conditions and requirements 1-posed upon them 1 and regulations of the City of ;lorthampton the Zoning Ordinances of the City of 11orrhampton and have met all or the reauests of the acting 3uilding Inspector ofdthorCaty of llorthampton to allow their property t be f of lawfully allowed use under- City Zoning. - the City of Northampton to allow them to use their property for this lawful use entitles there to just compensation. 35. The Plaintiffs demand a TRIAL BY JURY or. this Count of their Complaint. COUNT IV 35, The Plaintiffs alleges each and every statement of his Complaint as if originally restated herein. 37, The Plaintiffs further allege that the officers, e= ^plong and city officials of Lhe City of Northampton are acting Plaintiffs to sell to in a concerted effort to force the below its fair the City of 14orthar:pLOn Lheir property market value for housing for the elderly. 3U, Subsequent to their initial application to allow t h e use of their premises as a Construction Supply Council of the that was filed in 1984. Members of the City City of Northanpton and the Planning Board of t Counctl for Northampton filed an application with the City ou take it the City of liortha:ipton to razone this property to out of Special Industrial Use. The attempt of these individuals to have the property rezoned and taken out of Special Industrial Use was defeated. 0 39 During this period or time the Housing authority ofron City of Northampton attempted to take the property -the Plaintiffs by use of the power of E. -inent Domai fn to turn the property into use as Elderly Housing- —o ap- The Plaintiffs in this action rere approached by Councillor LaBarge and requested by Councillor aBarg° to sell this property to the Cit,: of ??orthampton for Elderly Housina. The Plaintiffs in this action refused to sell the property to the City of Northampton for Elderly Housing. 41- The Plaintiffs state that the actions of the Councillor LaBarge in appealing the issuance of their Building Permit and attempting to prevent t�.e Plaintiffs fro_, using their property for a lawful use under City Zoning is an attempt to diminish the value of the property or force the Plaintiffs into such serious adverse economic circumstances that they would be forced to sell the property to the City of Nort'_:ampton for Elderly Housing. 42- The Plaintiffs state that the attempt by the Housina Authority of the City of Northam to take their property by Eminen_ Domain was defeated inasmuch as th= Housina Authority detern.ineci that it could not take this property by Eminent Domain for housing purposes. The attempt by the City of .dorthampton to obtain the property by purchase has failed because the Plaintiffs do not intend to sell the property to the City of Northampton for Elderly Housina. 43. Therefore the Plaintiffs allege that the actions of the City of Northampton to prevent them from using the premises for a lawful use is a concerted action taken with the deliberate purpose of forcing the diminution of the value of their property and forcing t Plainti to sell their property below fair market value. The Plaintiffs allege that the acts and practices of the City of 'Northampton in this regard are unfair and deceptive and that these actions have deprived the Plaintiffs of the lawful use of their property which are rights guaranteed by the Massachusetts and United States Constitutions. The Plaintiffs allege that as a result of the acts and practices of the officials of the City of Northampton the Plaintiffs in this action have actually been damaged. ^4- The Plaintiffs all -ae that they have been unable to use their property for any lawful purpose for a period cf t4- ^e bulldina a and that they have made expenditures by Tway of foundation and purchasing a building for construction of the premises which trey are unable to construct. through Law office the acts and practices of the officials of the City or PATRICK J. MELNIK N c r t h a np t o n. 110 King Street The Plaintiffs allege that they are entitled to damages iorthampton, MA 0 10 60 from the City of I- orthampton for the loss cf property that they have suffrCred as a result Of the actions of th_e City 413 - 584 -6750 of ?,orthampton -9- 1./ 46. The Plaintiffs all�-as that they are sntitl-�d to compensation from the City of Northampton fcr the f'�li and fair market value of the diminution or the .glue of their property as a result of the unlawful acts and ic:-s o f the officials of the City of Northampton. 47. The Plaintiffs demand a TRIAL BY JURY on this Count of their Complaint. WHEREFORE, the Plaintiffs demand the following: 1, That the decision of the Zoning Board of Appeals dated Movember 15. 1933 be annulled and th at the Building Permit for the construction of t'-a Construction. Supply Establishment be all- 2. In the alternative the Plaintiffs demand that t:e case be remanded to the Zoning Board of :,PpGals fer a full and fair and before an impartial sitting of :embers of the Zoning Board of Appeals who have not previously rendered a decision on the nerits c' their Petit prior to Public Hearing. 3. That damaaes be assessed against the Defendants in this action for such sum as will be necessary to compensate the Plaintiffs for all of the loss of profits, dim of the value of their property, loss of use of their property, loss of sir rental value of their property, and such other damages as the Plaintiffs have suffered as a result of the unfair and unlawful acts and practices of the Defendants in this case. 4. Attorney's fees and costs. S. The Plaintiffs demand such other relief as :nay be appropriate. 6. The Plaintiffs demand a TRIAL BY JURY on Counts I» and of this Complaint. :November 18. 1988 A l . trick J. i n ielik Esq. 0 Kina S ti - r ilortham -pion, t -Ia 01060 584 -6750 i t i I 8 EUGENE A. TACY, Petitioner .O4 COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, S.S. BUILDING INSPECTOR FOR THE CITY OF NORTHAMPTON NOTI OF APPEAL Lw 'RICK J. MELNIK 10 King Street impton,MA 01060 418- 584 -6750 Now comes Eugene A. Tacy of 158 North Maple Street, Florence, Massachusetts who states that on or about August, 1988 he filed an application for a Building Permit with the City of Northampton for the purpose of constructing a Construction Supply Establishment on his property located on Main Street, Leeds, Massachusetts, Assessor's Map 10D, Parcel 17A. The property is zoned Special Industrial. The Building Permit for the Construction Supply Establishment is allowed by right under the City of Northampton Zoning Ordinances and a Building Permit for the Construction Supply Establishment was issued by the Building Inspector for the City of Northampton. On or about October 7, 1988 the Building Inspector for the City of Northampton, Edward J. Tewhill revoked Permit Number 632 issued on October 7, 1988. No reasons for revocation was given. On behalf of Eugene A. Tacy I hereby appeal pursuant to the provisions of Massachusetts General Laws, Chapter 40(a), Section 15 from the enforcement action of the Building Inspector revoking the Building Permit. On behalf of Mr. Tacy I contend that the Building Inspector had no right to revoke this Permit and that the Building Permit should be reinstated. Attached to this Notice of Appeal is a copy of the revised application for Variance and Special Permit which I have modified to reflect the request for Appeal. October 20, 1988 eived at City Clerk's Office AS 7 � 013THAMPTON, S. 1 , t� Dat pC-w Time p atrilckJ. Melnik Esq. 110 King Street Northampton, Ma 01060 584 -6750 got Write In T Application Number: ? X rieE'd. Filed Fee Pd. Rec'd. ZBA Maps) Parcels) g pa Date Amt. Dale By Dale v� APPL( T A O THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS: 1 ;' Name Address ticanIt Eugene A. Tac 158 Nort Ma le Street Florence Massachusetts •,;;, '' Eugene A. Tac and James J. Tacy Owner of Property � y Address x 58 North Maple Street, Florence, Massachusetts J 3, Applicant is: &Owner; ❑Contract Purchaser; DLessee; 0Tenant in Possession. 4. - Application Is made for: _ CJ VARIANCE from the provisions of Section_page._.____of the Zoning Ordinance of the City of Northampton. ❑SPECIAL PERMIT under the provisions of Sect ion-page _. -o f the Zoning Ordinance of the City of Northampton. MTHER: 1 - or Lne Veci5�211 21 L 1C 1X, 4AA.LL& - -- Permit Number 632 for a Construction Supply Establishment. 5. Location of Property Main Street, Leeds, Massachusetts being situated on the Fast side of Main _ Street; and shown on the Assessors' Maps, Sheet No. 10D , Parcel (s) 6. Zone Special Industrial construct a to cons 7. Description of proposed work and/or use; Applicant proposes - Construction Supply Establishment that is a 60' x 60' building pursuant to the, Construction sup Establishment is an allowecl use Dy right n this district. The lot is a conform n of to zon n n a mens ona and density requirements of the zoning wiLlb a dh ered Co. 8; ,(e) „Sketch plan attached; O Yes O No, Site plan; CYAttched DNot Required 9.` ` Set forth reasons upon which application is based: This is . the Building Inspector to revoke the permit. A copy o he Notice of revocation is attached to this Appeal. C onstruction Supply Establishment is an allowed use by 10. Abutters (see instructions; list on reverse side of form), ' 12.' 1 hereby certify that information contained herein is true to a est of my knowledge. Date October 18, 1988 A pplicant's Signatur NW10 of Neehantpf" DEPARTMENT OF BUILDING ZNSp (OR 212 Main Street 0 Municipal BUij& Northampton, Mass. 01060 7q EVOCATION OF PERMIT ` � " l 7 '9� NOTICE OF R Oro 1; NOTICE TO STOP WORK -_ 101. OF BUILDING INSPECTIONS M—P"PTOR MA. 01060- Octal ei 1988 N TO; Eugene Tacy Building. Inspecto"ar am notifying you that I am revoking the building Permit numbered f 6�2 issued to you on October 7, 1988, for a building to be erected at 175' Main Street Ma. shown an Asse4aor's Map 10D as Parcel 17A. All work on said building is to cease immediately. No further activity on the site in connection with the erection of this build- ing is to take place. Very truly yours W40 r t. Edward J. Tewhill Acting Building'Inspertor N"..• ... CITY of NORTHAMPTON OFFICE of PLANNING and DEVELOPMENT MEMORANDUM TO: Kathleen Fallon FROM: Bob Pascucci SUBJECT: Eugene A. Tacy's Appeal DATE: December 22, 1988 FILE: As you are aware, Atty. Melnik, on October 21, filed with the City Clerk an appeal on behalf of Eugene Tacy of the Building Inspector's revocation of Building Permit #632, which would have allowed construction of a 60' x 60' building at 175 Main Street, Leeds. As I'm sure you recall, back in September, Councilor LaBarge appealed the Building Inspector's issuance of Building (Foundation) Permit #553 which would have allowed construction of a 60' x 60' building at 175 Main Street, Leeds. The permit numbers are different, but the building's the same, the parcel is the same, and all the reasons listed in the Zoning Board's Decision that the Building Inspector's issuance of Permit #553 was erroneous are the very same reasons that uphold the proposition that revocation of Permit #632 by the Building Inspector was proper. Isn't this res adjudicata at the Zoning Board level? This issue has already been decided. Nothing is different except the Permit numbers, and the point of view of the Appellant. 0�- *e.. ..0' U Al tWrtte1 Thds - e - Sp`Aas Application Number: l B:I:' - Chedk1d Filed FPP Pd_ Recd_ 7RA Man(s) Parcel(s) BY; Dale By ;�; pie Dace P Cate r Oats TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS: 1. Name of Applicant Raymond -- W. LaBarge, City Councilor -Ward 7 Address 24 Water Street, Leeds, MA 01053 • 2. Owner of Property Eugene Tacv Address 158 North Maple Street, Florence, MA 01060 3. Applicant is: QOwner; El Contract Purchaser; OLessee; 0Tenant in Possession. . X complainant 4. Application is made for: ._.' VARIANCE from the provisions of Section page of the Zoning Ordinance of the City of Northampton. : SPECIAL PERMIT under the provisions of Section page of the Zoning Ordinance of the City of Northampton. l2X0 THER: Appeal of Building Inspector's issuance of a Building Permi and Decision 5. Location of Propert y 175 Main St., Leeds ' "" -' being situated on the easterly side of Main (Leeds) StreeYnd shown on the Assessors' Maps, Sheet No. lOD , Parcel(s) 6. Zone SI 7. Description of proposed work and /or use; Appeal of Building Inspector's Decis of 9/22/88 on a Zoning Violation Complaint filed on 9/7/88 relative to the issuance of Building Permit #553 issued lor tlie. construction of a foun ation for a Construction Supply Establishment to Eugene Tacv As 9/22/88 wor was still progressing on the site. 8-(a) Sketch plan attached; OYes M No (b) Site plan: OAttched X1 Not Required 9. Set forth reasons upon which application is based: T beli +ha+- i-hA i aanarte -0 of thi c Hiii 1 Ai ng pPrmi t i c i n yi al ati nn of SPC- inn 9 1 (h) and i n yi nl ai•1 nn of h nPr-icinn of the 7nninQ Board of Appeals made nn AL�st 12. 1 87. n whi -- - - ' - - - 10. Abutters (see instructions; list on reverse side of form). 12. 1 hereby certify that information contained herein is true to the best of my knowledge. Date September 23, 1988 ---- Signature rite in e Application Number: Th� 1 1 �Fed `; Filed Fee Pd. Rec'd. ZBA Map(s) Parcel (s) a gy Dare.: Dau Aml. Oar• Q BY Mid 0/ f 7rT Ur APPLICA , 6Y, MADE TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS: J • •: "• ; '` �, 4 �tt;a ►nftoN. �a. oi�° Euge A Ta Name - of' pp cant , Eug _� Address 158 North Maple Street Florence Massachusetts Owner of Property Eugene A Tacy and James J. Tacy Address Nor Maple Street Florence Massachusetts +. 3. • Applicant is: MOwner; 0Contract Purchaser; 01-essee; 0Tenant In Possession. 4: Application Is made for: O VARIANCE from the provisions of Sect lonpage_- --- -of the Zoning Ordinance of the City of Northampton. C SPECIAL PERMIT under the provisions of Sect lon__page D f the Zoning Ordinance of the City of Northampton. CXOTHER: Appeal or the liec2.5.LQn VL r_iic Ix uL.�,, �.w,n........ Permit Number 632 for a Construction Supply Establishment. . 5. Location of Property Main Street Leeds Massachmetts being situated on the Fast side of Main Street; and shown on the Assessors' Maps, Sheet No. 10D , Parcel (s) 6. Zone S2ecial Industrial 7.. ` Description of proposed work and /or use; Applicant proposes to construct a Construction Supply Establishment that is a 60' x 60' building pursuant to the Construction Supply Esta is an alloweu use Dy rlgnL lIl this district. The lot is a conrorming lot to zoning in a imensiona and density requirements o the zoning wi e a ere to. 1 8 } 1 �(a) .- Sketch plan attached; OYes O No. _ Site plan; QAttched 0 Not Required -- ' This is an AnraP�l of t'hP ci % bh "`f Set forth reasons upon which application Is based: Building Inspector to revoke the permit. A copy o he Noti of revocation is attached to this Appeal Construction Supply Establishment is an allowed use by right in this district The lot is a conforming lot to zoning in all dimensiona 10. . Abutters (see instructions; list on reverse side of form). _ 12._ 1 hereby certify that Information contained herein is true to a est of my knowledge. October 18 1988 tur Date A pplicant's Slgna i *4._ ...OI DECISION OF NORTHAMPTON ZONING BOARD OF APPEALS At a meeting held on November 2, 1988, the Zoning Board of Appeals of the City of Northampton voted to sustain the Appeal of Raymond LaBarge of the issuance by the Building Inspector of Foundation Permit #553 to Eugene Tacy for the commencement of construction of a Construction Supply Establishment at 175 Main Street, Leeds. Present and voting were Chairman Robert D. Buscher, Dr. Peter Laband, and William Brandt. The findings were as follows: The property is zoned Special Industrial. Prior to the division of what was Parcel 7 of Sheet 10D of the Northampton Assessor's Maps, the entire parcel was used as a construction yard. A construction yard use in an SI Zone - 'requires a Special Permit. Since the construction yard use of the site predates the Special Permit requirement, it is a pre- existing, nonconforming use, and as such, is regulated by Chapter 40A, Section 6 of the Massachusetts General Laws, and Section 9 of the Northampton Zoning Ordinance. Chapter 40A states that a pre- existing, nonconforming use may be changed, altered, or expanded only after a Finding .by the Zoning Board of Appeals that the change, alteration, or expansion is not substantially more detrimental to the neighborhood than the current use. [Section 9.3(b), ,Northampton Zoning Ordinance]. Applicant proposes to build a 60' x 60' building on the - property, and to use that building to house a construction supply establishment, an allowed use in a Special Industrial Zone. Applicant's original application for zoning relief in 1984, and the 1987 application, indicated that the building would be used both for the nonconforming use (repairing and storing equipment), and the proposed new use. The application for which a permit was granted in 1988 indicated that the building would be used only for the construction supply establishment. If the nonconforming use is still .present on'the lot, the addition of either a building or a _new use, even if that use is allowed, is an expansion of that nonconforming use and requires a Finding by •the Zoning Board of Appeals that the proposed use is not substantially more detrimental to the neighborhood than the existing use. 'e... - Ir ,, DECISION OF THE NORTHAMPTON ZONING BOARD OF APPEALS IN THE MATTER OF THE APPEAL OF RAYMOND LABARGE OF THE ISSUANCE OF A BUILDING PERMIT TO EUGENE TACY. .PAGE TWO. The Planning Board did in fact approve an "Approval not required under the subdivision control law" for the divided site. The only zoning issue resolved by the approval of such a plan is that each lot, as created in said plan, has sufficient frontage for that zoning district. It does not give any guarantee that the lots will qualify as building lots. Section 6.4 of the Northampton Zoning Ordinance states that "No lot ... may be divided so as not to conform with a provision of this ordinance. No group of lots in a common ownership may be separated or the ownership of one or more lots changed so as not to be in conformance with a provision of this ordinance." The pre- existing, nonconforming use has been shifted to a fractional portion of the original lot, thereby intensifying that use, which is an alteration which requires a Finding by the Zoning Board of Appeals. Until the issue of the intensification of the nonconforming use on one lot is resolved, neither of the two lots shown on the "ANR" Plan conform to the Zoning Ordinance. The Building Inspector's issuance of the Foundation Permit ( #553) was erroneous. Robert C. 8uscher, Chairman C Dr- Peter Laband William Brand City of Northampton 1 - . MEMORANDUM Office of the Legal Department TO: Bob Pascucci FROM: Kathleen Fallon SUBJECT: Tacy Appeal DATE: December 23, 1988 FILE: I believe you are correct in stating that the issue to be presented to the Zoning Board of Appeals in this matter is, basicallly, the same presented in Councillor LaBarge's appeal. At least it is based on the same facts. It would appear to me that, if the ZBA has already ruled that the permit was improperly issued, it would have to rule that the revocation was appropriate. I think Attorney Melnik is just preserving every right that the Tacys' may have. Unless he completes the administrative appeal process, the court probably would not hear any suit on the issue. bQ COMMONWEALTH OF MASSACHUSETTS Hampshire, ss. Superior Court Civil Action — No. 89 -309 ? t c BUILDING INSPECTOR OF THE CITY ] 'D OF NORTHAMPTON, Plaintiff ] ® 6 l FF I cE VS. �DEVFiop'NN11VG TACY CONSTRUCTION CO., INC., et al ] NT Defendants ] SUMMARY JUDGMENT This action came on to be heard before the Court, Murphy, J. presiding, upon motion of the defendant Tacy Construction Co., Inc. a /k /a Tacy Excavating Co., Inc. for summary judgment and to dismiss, and pursuant to Mass. R. Civ. P. 56, the parties having been heard, and the court having considered the pleadings, briefs, affidavits and opposition briefs filed, finds that there is no genuine issue as to material fact and that the plaintiff, Building Inspector of the City of Northampton is entitled to a judgment as a matter of law; Therefore, it is ORDERED and ADJUDGED as follows: 1. Judgment is hereby entered for the plaintiff, Building IW tp the City of Northampton and the constructive grant of a�al Per C, Construction Co., Inc. is hereby annulled; ; cl k � within thirty days send attested c CLERK AG P thereof to the Building Inspector, Zoning Board of Appeals and the . M Clerk of the City of Northampton. Dated at Northampton, Massachusetts this First day of December, 1989. for Court C erk /Magi tfate FORM OF JUDGMENT APPROVED: