Melnik letter to ZBA 6.9.21MELNIK LAW OFFICES
Attorneys at Law
110 King Street - Northampton, Massachusetts 01060
Phone: (413) 584-6750 - Fax (413) 584-6789
PATRICK J. MELNIK JR., ESQ. patmelnikjr@melniklawoffices.com
MARY E. MELNIK PENNEY, ESQ. marypenney@melniklawoffices.com
JOSEPH E. SZAWLOWSKI, ESQ. josephszawlowski@melniklawoffices.com
PATRICK J. MELNIK SR., ESQ., Of Counsel
ROGER A. WALASZEK, ESQ., Of Counsel
June 9, 2021
Zoning Board of Appeals
C/O Office of Planning & Sustainability
210 Main Street, Room 11
Northampton, Ma 01060
Re: Permit Denial Appeal Hearing Continued to 6/10/2021 Grove Ave. Leeds MA.
To Whom It May Concern:
Please find attached copies of additional supporting documentation and additional reasons the permit should be granted which should be taken together with all documentation submitted
previously and of record.
The ZBA should grant the building permit for Tax Map 05, Parcel 012, 001 permit dated 3/21/2021, denial dated 3/25/21 for the following reasons:
The subdivision of land prior to the enactment of the subdivision control law was accomplished by the recording of a plan in the registry of deeds. After the enactment of the subdivision
control law the Registry of deeds will not accept and record any plan which subdivides land unless it has received planning approval or if it is determined planning approval is not required.
In this case the Washington Heights plan is unquestionably recorded in the Hampshire County Registry of Deeds and therefore the land is subdivided as provided on that plan and the streets
as laid out on that plan are in existence on paper and the owners’ rights cannot be denied by the City.
There is unquestionably access to the property. While the City was granted an easement along the way for use as a multi-use trail that does not interfere with rights which were in existence.
In addition, the way is sufficient for vehicle access, as was stated in the meeting City vehicles regularly travel along the multiuse trial and the owners have maintained the legal
rights to access across that way and they cannot be prohibited.
The attached plan shows the width of the way as bult at this time which is the same as the width of the road on other portions of Grove Ave and is therefore sufficient for access to
this parcel.
In addition, very recently a home was built at 83 Grove Ave which is abutting this property and has the same access as the parcel in question. The building permit was granted 3/13/2017.
If there was sufficient access to grant a building permit for 83 Grove there is sufficient access to this parcel as their access is essentially the same.
The city has stated that in the past they have not allowed the end of a way to be used as frontage, however it is acknowledged that the zoning regulations do not provide for this. If
the zoning regulations do not provide that the end of the way cannot be used as frontage. The city or board would be making and enforcing an additional and unwritten rule which is not
included in the plain language of the regulations. The regulations must be followed. The parcel in question fronts Grove Ave directly as shown on the attached plans. There is no regulation
of the City of Northampton Zoning regulations which prohibits the frontage of this lot butting a city street from counting as frontage under the regulations. The City cannot read language
into the zoning regulations that does not exist. The City contention that they previously denied other building permits on ends has not de-facto amended the zoning regulations as has
been suggested.
In HSCV2004-00029 a Judgment in the Superior Court established that the Grove Avenue, Northampton, Massachusetts is a public way for its entire length to the point where it abuts the
property now owned by the Beaver Brook Nominee Trust. This Judgment established that at least until the point abutting the trust is a public way but the issue of the way past this point
was not at issue and has not been adjudicated by this Judgment and the applicable Subdivision Control laws in existence at the time of the recording of the Washington Heights Plan controls.
Please find further plans, maps and documents showing Grove Ave. and supporting the sufficient accesses and right to construct on this lot which may be helpful to the Board.
If you have any questions or concerns, please feel free to contact me.
Sincerely,
Joseph E. Szawlowski, Esq.
JES/jlp
Enclosures