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Account Information Payment Type: Credit Card
Roger P Lipton
Name: ,,.............8848 pton
9 Laurel Mountain Road Payer Name: pton
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West WhatelY Card Number: Roger P Li
City:
State: MA
01039
zip: rri
hwilliams@greenmiles.co
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Transaction Information
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1
Transactta planning and
Northampton
Permits
Planning
Permit:Other Richard
Property Owner Name:
Watling Application Name:Richard
Watling
John M.McLaughlin .
Watling #for Work Location'.
25
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Assessors Block#Work Location:
025
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Permit Application
Today's Date: 06/23/2022
Owner Applicant
Richard Watling Richard Watling do John M. McLaughlin
129 Riverbank Road 77 Pleasant Street; PO Box 210
Northampton,MA 01060 Northampton, MA 01061
413-586-8218
jmclaughlin@greenmiles.com
City of Northampton department N
Work Location Information
How many lots involved in the project: 1 ';') E C IE D W E
Map/Block/Lots of all lots in project: 25/025/026
Deed Book of all lots in project: 9858/235 T 1
Project work address: 129 RIVERBANK RD LI I JUN 2 .4 2022 -J
City/State/Zip: Northampton 01060
Zoning District: SC CITY CLERKS OFFICE
NORTHAMMPTON.MA 01060
Application for following Permit Types
❑Planning Bd. Special Permit w/Site Plan ['Planning Bd. Special Permit w/Site Plan for flag lots
❑Planning Bd. Special Permit w/MAJOR Site Plan ['Planning Bd. Site Plan (NO Special Permit)
['Administrative Site Plan Review
alarming Bd. Major Site Plan or 40R Approval ['Approval Not Required Plans
(No Special Permit)
❑Subdivision Preliminary ❑Subdivision Definitive IF Preliminary approved
❑Subdivision Definitive IF NO Preliminary ['Subdivision Definitive Amendment
❑Zoning Board Special Permit ❑Zoning Board Finding
®Appeal of Building Commissioner-Zoning ['Comprehensive Permit
❑Variance ['Demolition(Demolition Delay)
❑Historic District Determination of Non-
A plicability
Historic District(Elm St)Determination of ❑Central Business Architecture
Appropriateness
❑West Street Architecture
['Wetlands Notice of Intent, Abbreviated NOI or ❑Wetlands Notice of Intent IF ONLY local wetlands
ANRAD, IF state wetlands
Wetlands Request for Determination OR Resource
Delineation ❑Wetlands Amendment
Wetlands Certificate of Compliance request nwetlands extension
210 Main St., Rm. 11, City Hall,Northampton, MA 01060
(413) 587-1262
, I
,/
7
Ivor s
Fee Information
Appeal of Building Commissioner-Zoning- $325 S 325
Total fee amount: S 325.00
Existing Use
Partially constructed garage detached at ground level and
attached at second floor level to pre-existing nonconforming
structure.
Planned Use
Please see attached memorandum.
Detailed Project Information
Commissioner Appeal Description: Please see attached memorandum.
Special Permit Description: n%a
Files Uploaded:
Supporting Information: Appeal and Exhibits.pdf
Comprehensive(40b):
Drainage Information:
Traffic Information:
Plan Sheets:
Wetlands Information:
Approval Not Required:
Autocad:
Tiff or PDF:
Historic Information:
By typing my name in the signature box, I certify that all the information above is accurate to the best of my
knowledge, I am the property owner or have permission from the property owner to apply for this permit. I also
grant permission to the City of Northampton to inspect the proposed work
Signature: John M. McLaughlin Date Signed: 06/23/2022
210 Main St., Rm. 11, City Hall,Northampton, MA 01060
(413) 587-1262
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Appeal of Building Commissioner's Order
I have recently been retained to represent Richard Watling("client")of 129 Riverbank
Road. Pursuant to M.G.L.A.40A § 8 and M.G.L.A. 40A § 15,this is an appeal of the
Northampton Building Commissioner's order set forth in the letter of May 26,2022 (the
"letter/order")which was received by the client on June 1,2022, mandating the removal of the
partially constructed garage structure located at the rear of my client's property located at 129
Riverbank Road(the"subject structure"). A copy of the letter/order is attached hereto as Exhibit
A.
As this Board may recall, in September 2021 this Board granted my client a Special Permit
to complete the construction of the subject structure;however that Special Permit was based
upon the condition that my client purchase additional property from the owner of the adjacent
property located at 117 Riverbank Road within 45 days of the decision. A copy of the decision is
attached hereto as Exhibit B. Unfortunately,despite his best efforts,my client was unable to
effectuate that purchase,and according to the explicit terms of that Special Permit, it is now null
and void.
This Board should overrule the Building Commissioner's order to remove the subject
structure because the order is premature. My client may be entitled to zoning relief which would
1
justify the completion of the subject structure. The teardown order at this time is draconian and
punitive. An order to tear down a structure should be a last resort, issued only when there is no
possibility of zoning relief that could legalize the structure. See Sheppard v. Zoning Bd of
Appeal of Boston, 81 Mass.App.Ct. 394 at 407 (2012). As set forth herein, my client will soon
be seeking zoning relief from this Board which, if granted, could allow for lawful completion of
the structure. Under these circumstances, the order to remove the garage structure, is not
justifiable at this time.
I requested an extension of time regarding the letter/order but the request for an extension
was denied. I will very soon file an application for a Special Permit pursuant to Northampton
Zoning Ordinance § 350-9.3 A (10). I would have preferred to file the special permit application
simultaneously with this appeal, but as set forth below I am engaged in related negotiations
which are not completed.
This Board should allow my client to pursue the special permit application rather than
simply uphold the order to remove the subject structure immediately
This Board could determine that my client is entitled to a special permit pursuant to §
350-9.3 A (10), without my client obtaining additional land from the owner of 117 Riverbank
Road. However. I may soon be able to file an application which would seek. as an alternative.
zoning relief similar to what was granted in 2021.
If I am unable to have a definitive answer with reference to seeking zoning relief similar
to what was granted in 2021 (purchasing land from the neighbor) I will within approximately one
week, file the application for special permit seeking relief without purchasing land from the
neighbor, with the understanding that I may amend the application while it is pending.
As stated above, the application for special permit will be made pursuant to Northampton
Zoning Ordinance § 350-9.3 A(10) which provides:
2
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
spacer 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.)
My client has a single-family,nonconforming home. In 2021 he filed for zoning relief to
allow him to construct the subject structure. The new construction would have created new
dimensional violations and violate the open space ordinance. City officials were particularly
concerned that the new construction would be not in compliance with the open space ordinance.
The city insisted that my client go forward with his application by purchasing land from the
owners of the neighboring property, 117 Riverbank Road.
My client planned to purchase additional property from the owners of 117 Riverbank
Road. At the urging of city officials,he retained a surveyor who created an Approval Not
Required("ANR")plan depicting his property obtaining 1,620.78 square feet from the owners of
117 Riverbank Road. Yet,during the 2021 proceedings he was not able to reach an agreement
with the owners of 117 Riverbank Road to purchase the property depicted in the ANR plan. If he
did or said anything that led to the inference that there was an agreement in place,he apologizes
for the confusion.
One of the factual allegations made in the Building Commissioner's letter/order is the
contention that my client specifically told the board at the hearing on September 9,2021,that he
had an"agreement to purchase the strip of land from the neighbor."The letter/order is,at least in
part. based upon this factual contention.My client does not remember making such a statement
nor can he recall his attorney at the time making such a statement. If such a statement was made,
it was in error.
3
My wanted to purchase the property next door,but he was unable to meet with the then
owners of 117 Riverbank Road because they were out of state during the timeframe. Ultimately
he was able to contact them by phone and email. Unfortunately,by then the owners had been in
contact with government officials,and despite his best efforts,he was unable to effectuate an
agreement to purchase.
I have tried to confirm statements that were made at the hearing in September but:
1. I have been unable to find any recording or video of the hearing of September 9,2021;
2. the decision and the minutes from the hearing are lacking in certain important detail;and
3. while I have called the attorney who represented my client at the September 9,2021 hearing,
I have yet to hear back from him.
I will submit a public formal records request to the City of Northampton in the hope of
obtaining needed information pertaining to that hearing and other related matters, including
emails between city officials and the former owners of 117 Riverbank Road.
I understand the City was concerned about the open space ordinance.My understanding
is that that at the hearing on September 9,2021,there were between eight and twelve neighbors
in attendance. My client has told me that all of the neighbors in attendance were in favor of my
client's application,three of whom actually spoke in favor of his application.
Northampton Zoning Ordinance § 350-9.3 A(10)specifically provides that new
construction can violate "open space"so long as there is a finding that the new construction will
not be substantially more detrimental to the neighborhood. I respectfully submit this Board can
and should grant a special permit without requiring that my client purchase additional land from
the owner of 117 Riverbank Road, so long as the board finds that such an arrangement would not
be substantially more detrimental to neighborhood.
4
Evidence should be obtained from the neighbors pertaining to the issue as to whether the
zoning relief being sought by my client would be substantially detrimental to the neighborhood
even if he does not obtain additional land from the owner of 117 Riverbank Rd. If the evidence
from the neighbors is still supportive of my client, it would be difficult to see how any
reasonable board could find that such zoning relief would be substantially more detrimental to
the neighborhood,even if city officials oppose such a finding.
Despite the fact that this Board could readily determine that my client is entitled to the
special permit without purchasing any land from the neighboring property,he is diligently trying
to make such a purchase. Fortuitously, 117 Riverbank Road was sold to a new party this month.
My law firm has contacted the lawyer who represents the new owner and we are attempting to
reach an agreement to purchase the same piece of property shown on the 2021 ANR plan. The
property is encumbered by a mortgage, which means a partial mortgage release would be
required for the new. Owner to sell any part of the property at 117 Riverbank Road. Further, the
new owner will soon be relocating septic system and wants to confirm its location before
agreeing to convey property to my client. If we are able to reach an agreement with the neighbor,
I plan to include in the special permit application a provision or proposed condition concerning
purchase of additional land from the neighbor.
1 understand that my client acted unilaterally in the past and in a very problematic way.
According to the minutes from the hearing of September 9, 2021, his prior attorney admitted
some violations. I am concerned that the Building Commissioner's order to tear down the
subject structure may be punitive. The Board should not approve tearing down the subject
structure unless it first determines there is no zoning relief that would allow my client to move
forward.
5
By not later than Monday June,27,2022,my client intends to pay the fines referenced in
the letter/order without admitting any wrongdoing. My client,on his own,applied for a building
permit and paid the required fee to the City of Northampton. The City accepted payment for the
building permit and to date has not returned those funds.
Accordingly, I submit that the Building Commissioner's order/letter,at this time, must be
overturned. My client is entitled to seek zoning relief rather than being ordered to tear down the
structure. The letter/order appeared to be based on inaccurate facts, which constitutes an
additional reason to overturn the building Commissioner's decision.
Sincerely,
? e4 /I
ca lin
6
City of Northampton
Q5' ;m4e-,
is .. Massachusetts eY
DEPARTMENT OF BUILDING INSPECTIONS
+• 212 Main Street • Municipal Building
.r.� Northampton, MA 01060
May 26, 2022
Richard H. Watling
129 Riverbank Road
Northampton, MA 01060 J
RE: ORDER TO REMOVE STRUCTURE
129 Riverbank Road
Map 25, Lot 26
Dear Mr. Watline:
This letter constitutes an Order to remove the garage structure partially constructed on the above-
referenced property. The basis for this Order is as follows.
In March 2019 you submitted a Zoning Permit Application to the Northampton Building
Department to construct an addition to the single-family residence on your property. You were
informed both by email and by the issuance of a Building Permit Checklist that you would need
a special permit under section 350-9.3 of the Northampton Zoning Ordinance in order to
construct the addition.
Despite being informed of the zoning relief you would need to build the addition, you
commenced construction without the benefit of a special permit or a building permit. On May
12, 2020, the Building Department posted your property with a Stop Work Order. In May 2020,
you applied for both a building permit and a special permit. You requested several extensions of
the hearing on the special permit. Meanwhile you continued your illegal construction. The
Building Department issued two subsequent Stop Work Orders on August 10, 2020, and
September 15,2020. On both occasions,the Building Department issued Massachusetts Non-
Criminal Building Code Violation Notice,Ticket Nos. B051-010501 and B051-010502, which
imposed a fine of$100 for a first violation of the State Building Code and a fine of$500 for a
second violation of the State Building Code, respectively. You neither appealed nor paid either
Violation Notice.
In the hearing before the ZBA on the special permit you represented to the Board that you had an
agreement to purchase a strip of land from an abutting landowner. You filed an ANR plan with
the Board showing the strip of land to be conveyed to you. On or about September 14, 2021, the
ZBA issued a special permit finding allowing the proposed addition subject to the following
condition:
The applicant shall record the deed transfer as shown in the ANR within 45 days of this
decision date. If the applicant fails to record the deed transfer within 45 days, this permit
shall expire and be null and void.
You failed to procure the adjoining land within 45 days, as required by the special permit, and
you have not acquired the land to date. As such,the special permit has expired by its terms, and
it is null and void.
Based upon the foregoing. the garage structure was constructed in violation of both the State
Building Code and the Northampton Zoning Ordinance. You are hereby ORDERED to remove
the garage structure from the property at 129 Riverbank Road commencing no later than 48
hours from your receipt of this Order. You must continue such removal diligently and without
interruption, and you must complete the removal within 30 days of this Order.
Failure to abide by this Order will result in the filing of an enforcement action in Hampshire
Superior Court without further notice seeking to enforce the payment of the fines assessed for
violation of the State Building Code and for injunctive relief ordering the removal of the illegal
structure. In addition, the city will seek reimbursement for the costs and fees, including
attorneys' fees, incurred in enforcing the building and zoning codes.
Very truly yours.
1,6 • , 191-1T
'•nathan Flagg
Building Commissioner
Cc: Wayne Feiden, Director of Department of Planning and Sustainability
Carolyn Misch,Assistant Director of Department of Planning and Sustainability
Alan Seewald,City Solicitor
i
i
EXHIBIT
B
J
CITY OF NORTHAMPTON PERMIT DECISION `
DATES PROJECT INFORMATION
Submitted 05/12/2020 Owner Name/Address Richard Watling Northampton MA 01060
129 Riverbank Rd
Hearing 9/9/2021 Applicant Name/
Address(if different)
Extension 6 extensions Applicant Contact 413-320-7442 richardwatling129@yahoo.com
Hearing Closed 9/9/2021 Site Address 129 Riverbank Rd Northampton MA 01060
Decision 9/13/2021 Site Assessor Map ID 25-26 B9858 P235
Zoning District SC
Filed with 9/13/2021 Permit Type Zoning Board Special Permit
Clerk
Appeal 10/4/2021 Project Description Create new non conformity with addition to the home
Deadline projecting into the rear setback by 16+-'
An appeal of this decision by the Zoning Board may be made by any person within 20 days after the date of the filing of
this decision with the City Clerk,as shown.Appeals by any aggrieved party must be pursuant to MGL Chapter 40A,
Section 17 as amended and may be made to the Hampshire Superior Court with a certified copy of the appeal sent to
the City Clerk of the City of Northampton.
Plan Sheets/Supporting Documents by Map ID:
1. Existing Conditions Plan Stamped by Randy Izer
2. Subdivision Approval Not Required Plans dated June 2021, Randy Izer
BOARD MEMBER PRESENT FAVOR OPPOSED ABSTAIN/NO COUNT VOTE TALLY
(Favor-Opposed)
David Bloomberg,Chair ✓ ✓ ❑ ❑
Sara Northrup,Vice Chair ❑ ❑ ❑ ❑
Elizabeth Silver 0 ❑ ❑ Cl
Maureen Scanlon ❑ ✓
Bob Riddle ✓ ❑ Cl 3-0 To Approve
APPLICABLE APPROVAL CRITERIA/BOARD FINDINGS
ZONING
9.3 A10 The Zoning Board granted the special permit to expand the non-conformity of the structure by allowing
a new and greater non-conformity(rear yard setback)with an addition extending to within 3.4'of the
rear lot line. Upon hearing from abutters,who voiced support for the project,the Board discussed the
impacts to the most affected abutter and the broader neighborhood and determined that based on the
information submitted that the new encroachment would not be substantially more detrimental to the
neighborhood than the existing non-conforming setback of the house. The Board noted that one non-
conformity will be eliminated with the acquisition of a portion of the abutter's parcel.
pg. 1
•
•
CITY OF NORTHAMPTON PERMIT DECISION y �
CONDITIONS
1. The applicant shall record the deed transfer as shown in
the ANR within 45 days of this decision date. If the
applicant fails to record the deed transfer within 45 days,
this permit shall expire and be null and void.
Minutes Available at WWW.NorthamptonMa.Gov
I,Carolyn Misch,as agent to the Zoning Board certify that this is an accurate and true decision made by the Planning
Board and certify that a copy of this and all plans have been filed with the Board and the City Clerk and that a copy of
this decision has been mailed to the Owner,Applicant.
pg. 2