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Abutter Memo to ZBA1 GML GREEN MILES LIPTON, LLP ATTORNEYS AT LAW JOHN J. GREEN, JR. 77 PLEASANT STREET HARRY L. MILES P.O. BOX 210 ROGER P. LIPTON NORTHAMPTON, MA 01061-0210 JOHN M. MCLAUGHLIN* PHONE (413) 586-8218 *ALSO ADMITTED IN CONNECTICUT FAX (413) 584-6278 MICHAEL PILL (Main Office) BRAD A. SHIMEL SUSAN L. MILES WESTFIELD OFFICE: DAVID C. KUZMESKI, OF COUNSEL 48 EAST SILVER STREET, SUITE 5 RAYMOND W. ZENKERT, JR., OF COUNSEL*** WESTFIELD, MA 01085 *** ALSO ADMITTED IN OHIO & MICHIGAN PHONE (413) 642-8367 BRIAN L. BLACKBURN (Dec.) FAX (413) 579-5357 www.greenmiles.com August 11, 2021 Northampton Zoning Board of Appeals City Hall 210 Main Street Northampton, MA 01060 Re: My Client: Ms. Catherine Robinson Client’s property addresses: 38 Maple Street, Florence, MA Subject property address: 32 Maple Street, Florence, MA Applicant: Jennifer Polins Subject: Opposition to the Application of Jennifer Polins for a Special Permit/Finding pertaining to 32 Maple Street, Florence, MA Memorandum in opposition to the application of Jennifer Polins for a Special Permit/finding pertaining to 32 Maple Street, Florence, MA I. Introductory Statements/Objection I represent Ms. Catherine Robinson (“my client”) of Florence, Massachusetts. My client is an owner of 38 Maple Street, Florence, Massachusetts and resides at the property. Jennifer Polins (“Polins”), the owner of 32 Maple Street, Florence (“the 32 Maple Street property”), has filed an Application with this Board for a Zoning Board Special Permit for a Finding pursuant to §350‐9.3 A (10) pertaining to converting her garage/studio structure to second dwelling unit. My client is an aggrieved party in this matter because: (a) there is a presumption that she is aggrieved because her property abuts the applicant’s property; and (b) access to the applicant’s property is made on a driveway located on my client’s property by virtue of a specific easement. 2 My client opposes the application. §350‐9.3 A (10) is a “finding” ordinance; the provision allows a property owner, with a pre-existing nonconforming structure or a pre-existing nonconforming use, to amend those pre-existing nonconforming rights to do something new in or to the structure if this Board makes a certain finding. This ordinance is not applicable to the applicant’s situation. The Applicant’s garage/studio structure is not a pre-existing nonconforming structure and the structure has not been used for any pre-existing nonconforming uses. This means there are no pre-existing nonconforming rights which can be amended in such a way as to allow the applicant to use the garage/studio structure as a second dwelling on this property. The only way the applicant could use the garage/studio structure as a second dwelling on her property would be if this Board granted the applicant a variance. The applicant has not applied for a variance, and more to the point, the applicant does not appear to have the grounds for variance. In any event, this application for a finding to amend nonconforming rights must clearly be denied where the applicant does not have any nonconforming rights to amend. II. Site Plan Review, Additional Zoning Relief from this Board, and No Zoning Permit The applicant has already received site plan review for this proposed project from the Planning Board. At the Planning Board hearing the applicant’s attorney admitted that, in addition to site plan review approval, the applicant also needed relief from this Zoning Board of Appeals (“ZBA”) saying, “Now we understand that the proposal will also be required to be approved by the zoning board of appeals, but the applicant has chosen to come to the planning board first.” The applicant has been proceeding in a haphazard way because the applicant never applied for the required zoning permit for this proposed project. I have been in contact with Mr. Flagg, the assistant building Commissioner who said he had no record of such an application. The Zoning Permit ordinance § 350-4.4. “Zoning permit required” provides: 3 It shall be unlawful for any owner or person to erect, construct, reconstruct, or alter a structure or change the use or lot coverage, increase the intensity of use, or extend or displace the use of any building or other structure or lot without applying for and receiving from the Building Commissioner a zoning permit therefor. For purposes of administration, such permit and application procedure involving a structure may be made at the same time and combined with the permit required under the Building Code. Zoning permits shall be valid for six months after their issuance, but shall not provide any vesting in the event of zoning or other regulatory changes Indeed, had the applicant applied for a Zoning Permit the building Commissioner may well have told the applicant she would need site plan review approval and a variance to use the garage/studio structure for the second dwelling unit on her property. III. A Second Dwelling on a single lot must be 15 feet from an Adjoining Property. In the URB District two single-family dwellings are allowed on one lot, with site plan review approval from the Planning Board. See 350 Attachment 7, URB, Table of Use and Dimensional Regulations, attached as Exhibit A. The city ordinances mandate that in the URB district, the second dwelling unit on one lot must be at least 15 feet away from adjoining property. See § 350-6.11 and 350 Attachment 7, hereto as Exhibit B-1 and Exhibit B-2. The applicant’s plans show that the garage/studio structure is located a little more than 5 feet away from the north-easterly sideline. In the URB District the minimum side yard for a detached garage structure is only 4 feet. See 350 Attachment 7, attached hereto as Exhibit C. This means that the garage/studio structure (5 feet from the boundary), is not a pre-existing nonconforming structure. It is a legal, detached, structure on the applicant’s property. However, the garage/studio structure is located far too close to the boundary to be used as a second dwelling without some kind of zoning relief from the ZBA. 4 IV. § 350‐9.3 A (10) The applicant contends that § 350‐9.3 A (10) authorizes this Board to make a finding to allow the applicant to use the garage/studio structure as a second dwelling on her property. The ordinance provides: A preexisting nonconforming structure or use may be changed, extended or altered ... With a special permit for a single- or two-family home when the Zoning Board makes a finding the change which includes new zoning violations (such as reduction of open space, new setback encroachments or further encroachments into the setback, etc.) will not be substantially more detrimental to the neighborhood than the existing nonconforming single- or two-family structure. (Emphasis added) The garage/studio structure is not a pre-existing nonconforming structure. There is no pre-existing nonconforming use, such as using the garage for commercial use, being undertaken in the garage/studio structure. Without a pre-existing nonconforming structure or use the ordinance cannot be used by the applicant. Additionally, the ordinance does not appear to apply to anything other than a “single- or two-family structure”; the ordinance does not even apply to a detached garage building. Initially, the applicant wrongfully claimed the garage/studio structure was a pre-existing nonconforming structure. In the applicant’s documents for the Planning Board the applicant stated, “The detached garage/studio is nonconforming with regard to its distance from the garage/studio easterly sideline.” This statement is untrue. The applicant is still trying to make an argument for a “finding” through § 350‐9.3 A (10), even though there are no pre-existing nonconforming rights as to the garage/studio structure. The applicant makes a new, convoluted, and extremely confusing argument, saying “The house is non‐conforming with regard to the sideline and if the applicant is allowed to convert the accessory structure into an accessory dwelling unit, it will also be nonconforming with regard to the same side‐line.” This 5 statement is so bizarre and confusing that it appears to be designed to simply confuse this Board. This statement can best be dealt with by breaking it down: 1. “The house is non‐conforming with regard to the sideline…” § 350‐9.3 A (10) provides that changes can be made to a “preexisting nonconforming structure or use”; this language says what can be altered through the ordinance, a specific pre-existing nonconforming structure. In her new argument the applicant points out that the single-family home structure on the applicant’s property is a pre-existing nonconforming structure because of its side yard. All that this means is that this Board could authorize a change to the home structure through the ordinance. However, the plain language of the ordinance does not grant this Board the power to authorize a property owner to make changes to other structures, which are not pre-existing nonconforming structures, simply because they happen to be located on the same property. 2. “… and if the applicant is allowed to convert the accessory structure into an accessory dwelling unit it will also be nonconforming with regard to the same side‐line.” The applicant is saying that if this Board allows the applicant to convert the garage/studio structure into a second dwelling, then that second dwelling would then be nonconforming, similar to the home structure, because both structures would be too close to the adjoining property. The applicant’s statement is referencing the implications as to what would happen after the board allows the applicant to convert the garage into a second dwelling, but this board can never allow such a conversion because the ordinances do not authorize such allowance. If the board did somehow allow the applicant to convert the garage into a second home there would be a distinct difference between the two structures; the home structure would still be a pre-existing nonconforming structure and the garage/studio structure would be a nonconforming structure ostensibly authorized by an illegal grant of the Board. 6 The simple fact is that §350‐9.3 A (10) pertains to making changes to a “preexisting nonconforming structure or use.” The garage/studio structure is not a pre-existing nonconforming structure and there is no pre-existing nonconforming use of the structure. The applicant is clearly not entitled to any relief pursuant to this ordinance and the Board should not allow itself to be confused by the complicated argument being made by the applicant. V. The “Finding” test We cannot actually do a “finding” test in this case. In a normal finding test the board would compare the detriment from how a pre-existing nonconforming structure is used now to how the applicant proposes to use the structure in the future. In this case the garage/studio structure is not a pre- existing nonconforming structure; therefore, we cannot do the normal test. Yet, purely for the theoretical purposes, I will assume that the garage/studio structure is a pre-existing nonconforming structure (although it clearly is not) and undertake a form of the analysis. The Board should realize that the finding test does not consider the new use is substantially detrimental to the neighborhood; the test is a comparison. The board must: (1) consider the existing use. The garage/studio structure is occasionally used as a dance studio, and consider the detriment that causes the neighbors; (2) consider the proposed new uses. The garage/studio structure would be used as a second single- family home on the property, and consider the detriment that would cause the garage/studio structure; and (3) make a comparison. Consider whether the detriment caused by the new use is substantially more than the detriment caused by the old use. The “finding” test is a comparison to determine if a new use for property would be substantially more detrimental than an old use even though the new use itself is not significantly detrimental or 7 horribly detrimental. The task is to compare the detriment from the old use with the new use; that is key. Especially when this Board considers the unusual parking and traffic aspect of this case, the Board should find that using the garage/studio structure as a single-family home will create substantially more detriment to the neighbors than using the garage/studio structure for occasional indoor dance studio activities. The Board should realize that my client is not simply a neighbor complaining about theoretical increased parking or traffic with a new proposed use of the neighboring property. The applicant’s access to the subject garage is over a driveway located on my client’s property. The easement granted to the applicant is limited to “pass and repass on foot or with vehicle.” The specific grant does not grant parking or loading or unloading rights. The language gives the applicant the right to come and go only. Even now, with the existing use of the structure occasionally for dance studio activities, there is already a detriment in that there are occasions where: 1. one of the vehicles parked in front of the garage is parked on an area which is part of the driveway; and 2. cars of the applicant or, more frequently guests of the applicant, have parked on the driveway or have been there for extended times during loading and unloading. The applicant or her guests are not supposed to be parking on the driveway (See above). There is simply not enough parking to create a second home out of the garage. Historically, the applicant has not generally utilized the garage for parking cars and there have been instances where four vehicles have been parked in front of the garage. The applicant is attempting to downplay the traffic and parking problem that already exists with the subject structure occasionally being used as a dance studio. At the hearing before the planning Board the applicant said “I feel a little misrepresented. 8 There’s never been four cars parked in my parking pad.” Attached as Exhibit D, are photographs which clearly depict four cars parked on the applicant’s parking pad (This was taken before the Planning Board hearing where she said that this did not happen.) and photographs of cars already parking in the driveway. There is already a detriment to my client with the garage occasionally being used as a dance studio. If that garage were to become a single-family home there would be much more traffic and parking. Also, there would be residents coming and going much more frequently and at all times during the day. This is very different than occasionally using the structure as a dance studio. There could readily be two more cars for the people residing in the structure and if there are guests, as there frequently would be, there would be additional cars. There would be substantially more detriment suffered by my client because of the additional parking and traffic, especially with the traffic using my client’s driveway, if the garage were turned into a home. Accordingly, the board must deny the application because there would be substantially more detriment if the garage became a single-family home. If this Board is somehow willing to grant the special permit/finding then, at a minimum, there should be conditions to deal with the parking/traffic problem. A simple condition limiting the number of parking spaces available to the applicant would not be sufficient for this applicant. Indeed, there is also concern regarding the prior actions of this applicant. This Board may not be aware, because there was no mention of this fact in the application, that this applicant has already constructed most, if not all, of the interior elements of the dwelling unit. On October 11, 2019, long before the new city ordinance allowing for second dwelling units, the city building inspector issued a stop work order pertaining to the garage structure. See photographs of posted stop work order attached as Exhibit E. 9 Indeed, it appears that the kitchen plumbing, bathroom plumbing and perhaps some electrical elements were all constructed without permits and before the above referenced ordinances were even in existence. If the ZBA grants the required finding and this application is granted in some fashion the building inspector may now have to remove portions of the walls to determine if the work that was done is in conformity with the subject codes. If this Board is at all concerned about the integrity of the city’s ordinances, the chair should make inquiries of the applicant regarding this matter. Specifically, the chair should ask the applicant the names and contact information of the plumbers and electricians who have worked on her property without obtaining permits from the city. With all of this in mind, my client has a legitimate concern that granting the application with simply a condition limiting the number of cars parking on the property would not be sufficient to protect her from the significant additional detrimental effects of converting the garage to a second home. Instead, the conditions should provide that: 1. the applicant shall be required to create at least two new parking spaces for the second dwelling located in the garage which would be located on the southerly side of the garage structure; and 2. the applicant shall be required to access the parking area for the second dwelling by creating a second driveway located on the southerly side of the property, on the other side of the home structure. Again, I have discussed the “finding” analysis, as set forth above, theoretically only. It should be clear that the applicant is simply not entitled to utilize the finding ordinance in any way and no “finding” analysis is unnecessary.