23A-040 (3) 4
assertion that the site plan does not show sufficient space for storage of plowed snow to satisfy
Section 8.9.2 of the Ordinance; the assertion that there is a lack of sidewalk between the
proposed structure and the existing structure in violation of Section 11.6.B of the Ordinance; the
assertion that the proposed location of the driveway shown on the site plan violates Section 8.9.6
of the Ordinance; and the assertion that the site plan does not depict a sufficient number of off -
street parking spaces to satisfy Section 8.1 of the Ordinance. It is further
ORDERED and ADJUDGED that as to the plaintiff's G. L. c. 40A, § 17 appeal in
Miscellaneous Case No. 328392, the Planning Board, in its decision filed with the Clerk of the
City of Northampton on August 11, 2006, correctly denied relief and upheld the Building
Commissioner's decision declining to issue a building permit. It is further
ORDERED and ADJUDGED that this Judgment, or a duplicate original or certified
copy of it, be docketed and entered in Hampshire Superior Court Case No. HSCV2006- 00120,
to constitute the Judgment of the Superior Court Department in that case.
k By the Court. (Piper, J.)
Attest:
Deborah J. Patterson
Recorder
Dated: April 7, 2008.
A TRUE COPY
ATTEST:
o rw 5
RECORDER
5
further
ORDERED and ADJUDGED that as to the plaintiff's complaint in Miscellaneous Case
No. 303535, the count seeking judicial review under G. L. c. 40A, § 17, is DISMISSED. It is
further
ORDERED, ADJUDGED and DECLARED that as to the plaintiff's complaint in
Miscellaneous Case No. 303535, that count which seeks declaratory relief under G. L. c. 240, §
14A, Section 6.5 of the Ordinance is neither invalid nor unconstitutional. It is further
ORDERED and ADJUDGED that plaintiffs' complaint in Hampshire Superior Court
Case No. HSCV2006 -00120 is DISMISSED. It is further
ORDERED and ADJUDGED that as to the plaintiffs' complaint in Miscellaneous Case
No. 327327, as amended in accordance with the Court's ruling on December 15, 2006 to allow
one new claim asserting the right to judicial review of the Planning Board's remand decision,
those counts seeking judicial review under G. L. c. 40A, § 17, are DISMISSED. It is further
ORDERED, ADJUDGED and DECLARED that as to the plaintiffs' complaint in
Miscellaneous Case No. 327327, those counts which seek declaratory relief, the site plan last
submitted to the Planning Board, and upon which the Planning Board favorably voted in its
decision filed with the Clerk of the City of Northampton on November 7, 2006, was not required
to be disapproved upon the basis of the following grounds advanced by the plaintiffs: the
assertions that the exit discharge from the rear of the proposed structure does not comply with
780 C.M.R. 1002.1 and that the location of such an exit discharge is within the thirty-foot buffer
in violation of Section 6.5 of the Ordinance; the assertion that the proposed snow storage and
removal area located within the thirty-foot buffer violates Section 6.5 of the Ordinance; the
4
)
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 328392 (GHP)
v. )
)
SARA NORTHRUP, DAVID BLOOMBERG, )
BOB RIDDLE, and ELIZABETH WROBLICKA, )
as they are members of the City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
)
JUD GMENT
• These five related cases came on to be tried to the court (Piper, J.), which, in a decision
of even date, has made findings of fact and rulings of law. In accordance with that decision, it is
ORDERED and ADJUDGED that as to so much of the plaintiff's complaint in
Miscellaneous Case No. 299010 that seeks judicial review under G. L. c. 40A, § 17 of those
aspects of Planning Board's May 5, 2004 decision denying a special permit and site plan review
for a reduction in the width of the buffer under Section 6.5 of the Zoning Ordinance
( "Ordinance ") of the City of Northampton ( "City "), the Planning Board's May 5, 2004 decision
is not arbitrary, capricious, contrary to law, or otherwise lawfully entitled to be modified or
annulled, and is therefore upheld. It is further
ORDERED and ADJUDGED that as to so much of the plaintiff's complaint in
Miscellaneous Case No. 299010 that seeks judicial review under G. L. c. 40A, § 17 of that aspect
of the Planning Board's May 5, 2004 decision denying approval of Seawink, Ltd.'s ( "Seawink ")
site plan, the count seeking judicial review under G. L. c. 40A, § 17, is DISMISSED. It is
3
)
LORETTA GOUGEON, )
)
Plaintiff, ) HAMPSHIRE SUPERIOR COURT
) CASE NO. HSCV2006 -00120
v. )
) OTHER COURT
City of NORTHAMPTON PLANNING BOARD, ) CASE NO. 06 OTCT 000120 (GHP)
GEORGE RUSSELL, FRANCES VOLKMAN, )
JENNIFER DIERINGER, PAUL VOSS, )
FRANCIS JOHNSON, GEORGE KOHOUT, )
KEITH WILSON, and KENNETH JODRIE, as )
they are members of the City of NORTHAMPTON )
PLANNING BOARD, HUNTLEY ASSOCIATES, )
INC., SEAWINK, LTD., )
)
Defendants. )
)
)
LORETTA GOUGEON, MARK BIRD, and )
FRED WELLMAN, )
)
Plaintiffs, ) MISCELLANEOUS
) CASE NO. 327327 (GHP)
v. )
)
SEAWINK, LTD., and SARA NORTHRUP, )
DAVID BLOOMBERG, MALCOM B.E. SMITH, )
BOB RIDDLE, and ELIZABETH WROBLICKA, )
as they are members of City of NORTHAMPTON )
ZONING BOARD OF APPEALS, City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
)
COMMONWEALTH OF MASSACHUSETTS
(SEAL) LAND COURT
DEPARTMENT OE THE TRIAL COURT
HAMPSHIRE, ss.
)
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 299010 (GHP)
v. )
)
PAUL VOSS, FRANDY JOHNSON, DAVID )
WILLENSKY, GEORGE KOHOUT, KEITH )
WILSON, PAUL DIEMAND, WILLIAM )
LETENDRE, and KENNETH JODRIE, as they are )
members of the City of NORTHAMPTON )
PLANNING BOARD, the NORTHAMPTON )
PLANNING BOARD, and the City of )
NORTHAMPTON, )
)
Defendants. )
)
)
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 303535 (GHP)
v. )
)
SARA NORTHRUP, DAVID BLOOMBERG, )
and BOB RIDDLE, as they are Members of the )
City of NORTHAMPTON ZONING BOARD OF )
APPEALS, LORETTA GOUGEON, City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
)
Therefore, based on all my findings and rulings, I conclude that a declaration should
enter that the site plan as considered and approved by the Planning Board's November 7, 2006
remand decision, and as shown on the "Progress Print" dated November 2, 2006, was not
required to be disapproved by the Planning Board on the basis of those grounds which have been
advanced by the neighbors.'
Judgment accordingly.
Gordon H. Piper
Justice
Dated: April 7, 2008.
15 In their answer to the complaint in Miscellaneous Case No. 327327, the municipal defendants assert, as a
defense, the contention that the plaintiffs' claims are frivolous and not advanced in good faith, and seek, pursuant to
G. L. c. 231, § 6F, an award of their reasonable counsel fees and other costs and expenses incurred in defending
against the action. To support an award of reasonable attomeys fees and costs, the court is required to "determine,
after a hearing, as a separate and distinct finding, that all or substantially all of the claims ... made by any party who
was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not
advanced in good faith." The request is denied, as I make no such fording or ruling that the plaintiffs' claims in this
case were in fact wholly insubstantial, frivolous, and not advanced in good faith.
40
center" as:
"A building or group of buildings used for the offices and facilities accessory to
the practice of licensed medical practitioners, (including physicians, dentists,
optometrists, opthamologists, and persons engaged in all fields related generally to
medicine, but not including veterinarians) and including such common facilities as an
outpatient clinic or emergency treatment rooms, but not including inpatient facilities."
There was testimony at trial that the businesses operating in the existing commercial space on
Seawink's property included a chiropractic office, a massage therapist and an acupuncturist.
While the weight of the evidence could certainly go either way on the point, I find and rule that
the limited (although non - exclusive) list of licensed medical practitioners enumerated in Section
2.0 of the Ordinance as part of the definition of "medical center "excludes the types of businesses
operating in the existing commercial space from the "medical office" use category set out in the
table of off - street parking regulations. On that basis, I conclude that the more general
"commercial, retail, personal service, professional and business office" use category applies to
the existing commercial space. I further find and conclude, setting out my calculations in the
margin, that the eighteen parking spaces shown on Seawink's site plan are sufficient to satisfy
the Ordinance.
14 In the GB district, the existing second floor residential space is 1714 square feet, divided by 1 space per
500 square feet of gross floor area, which equals 3.43 spaces, and rounds down to 3 spaces under Section 8.4,
governing computation of spaces: "when the computation of required parking or loading spaces results in the
requirement of a fractional space, any fraction of one -half or more shall require one space." The existing first floor
commercial space is 1743 square feet divided by 1 space per 300 square feet, which equals 5.81 spaces and rounds
up to 6 spaces. Together, 9 spaces are required for the existing building. The proposed building is 1643 square feet
of commercial space on the first floor, divided by 1 space per 300 square feet, which equals 5.48 spaces and rounds
down to 5 spaces. Crediting the testimony of Smith that the proposed building is 1749 square feet of residential
space on the second floor, divided by 1 space per 500 square feet, which equals 3.49 spaces and rounds down to 3
spaces. Together, 8 spaces are required for the proposed building. For the entire site, I find that 17 spaces are
required under the Ordinance.
39
the neighbors argue that the plan violates Section 8.9.6. It is clear from the evidence before me
that both Seawink's driveway, as well as the adjacent driveway to the south along Maple Street,
are existing driveways in the business district. It is also clear that Seawink's site plan proposes a
redesigned entrance, narrowing the existing paved entrance that spans the property's frontage
along Maple Street to an approximately twenty -two foot curb cut with landscaped curbs and
islands that separate pedestrian and vehicle traffic. Because I find that both Seawink's and the
adjacent driveways are, for purposes of Section 8.9.6, existing driveways in the business district,
there is no zoning violation.
I turn now to the neighbors' final argument, in which they claim that Seawink's site plan
lacks sufficient off - street parking spaces under the Off - Street Parking Regulations Use Table in
Section 8.1 of the Ordinance. As submitted to the Planning Board, the site plan shows 18
parking spaces. The neighbors, relying on the testimony at trial of their expert witness engineer
James Smith, contend that 21 parking spaces are required under the Ordinance. There was
conflicting testimony given at trial by Smith and Seawink's engineer Mark McClusky. Based on
their testimony, it appears that their differing parking calculations rest upon their employment of
different uses in the table set out in the Ordinance: Smith treated Seawink's existing commercial
space as medical use, requiring one parking space per 200 square feet of gross floor area in the
GB district, while McCluskey treated Seawink's existing commercial use as commercial, retail,
personal service, professional and business office use, requiring one parking space per 300
square feet of gross floor area. Section 2.0 of the Ordinance, definitions, defines "medical
13 The neighbors also point to Chalk B, which was used at trial, in support of their proposition. Chalk B
consists, in relevant part, of Section 8.9.6 of the Ordinance, as well as a photograph and inset portion of Seawink's
site plan. Since the chalk was not introduced into evidence as an exhibit, and was used only to assist witnesses in
testifying at trial, I accord it no independent weight and do not consider this chalk in my decision.
38
Section 11.6.B. of the Ordinance. Section 11.6.B. requires that to grant site plan approval, the
Planning Board must find that compliance is met with, among other technical performance
standards: "pedestrian, bicycle and vehicular traffic movement on site must be separated, to the
extent possible, and sidewalks must be provided between businesses within a development." I
disagree with the neighbors' reading of the Ordinance; they read it in an overly - narrow way. I
do not find the provision "sidewalks must be provided between businesses within a
development" to be unambiguous. While the use of the word "must" suggests that the Planning
Board has no discretion in reviewing the existence and location of sidewalks, I conclude that a
strict reading of the language would cause an illogical and unreasonable result. Seawink's site
plan plainly shows sidewalks between the businesses within each structure, as well as a paved,
close -ended parking area, which has no through - traffic, between the two structures. The fire
access area, in which there will be no parking, would extend from the sidewalk in front of the
proposed structure into the middle of the rear parking area. Pedestrians would be required to
cross only the lane between the two rows of parking stalls, and the length of one parking stall, to
reach the sidewalk at the rear of the existing building. The City Planner also gave testimony,
which I credit, that sidewalks are not required across a paved area. As to this issue, I conclude
that the site plan showed no zoning violation requiring a variance.
Section 8.9.6 of the Ordinance, governing parking areas, provides that: "no portion of a
driveways [sic] entrance or exit shall be closer than fifty (50) feet to the curb line of an
intersecting street nor shall it be closer than fifty (50) feet to any portion of an existing driveway
located in a Business or Industrial district." Relying on the testimony of expert witness James
Smith, who testified that Seawink's site plan shows only twenty feet between the proposed
entrance to Seawink's site and the adjacent existing driveway to the south along Maple Street,
37
concrete or paved landing and walkway be provided to serve the rear door, I am able to conclude
that it would not violate the requirement for a thirty foot buffer.
Under the same analysis, and for substantially the same reasons, I reject the neighbor's
claim that the snow removal area depicted at the eastern end of the buffer strip requires a
variance. Section 6.5 calls for a dense screen of vegetation on the center of the buffer, which I
find exists on the plan as shown. On remand, the Planning Board required as a condition for
approval that bollards be located on the buffer to protect the vegetation from damage by
snowplows and snow. I conclude that locating a seasonal snow storage area on the buffer does
not interfere with the purpose and intent of the buffer strip.
The neighbors also argue that under Section 8.9.2 of the Ordinance, which provides that
"the layout of the parking area shall allow sufficient space for the storage of plowed snow
without reducing the number of required parking spaces, unless removal by some other means is
provided," the site plan does not provide sufficient space for the storage or removal of plowed
snow. The Planning Board's remand decision makes clear that they heard evidence about this
issue and considered it, because the "Progress Print" plan which was submitted at the remand
hearing eliminated the small snow storage area at the northern end of the parking lot. The
Planning Board found that removal of snow build -up beyond the storage capacity of the site was
the responsibility of the property owner. I find that the "Progress Print" plan considered by the
Planning Board on remand shows a snow storage area located at the eastern end of the buffer
strip, with a notation that "excess snow will be removed from the site as necessary." I conclude
that site plan satisfies Section 8.9.2 of the Ordinance.
The neighbors argue that the lack of a sidewalk between the front of the proposed new
structure and the rear of the existing structure, both of which include commercial use, violates
36
I proceed from the logical premise that, to satisfy the building regulations and standards
in the Code of Massachusetts Regulations, the Building Commissioner will require at the very
least a landing outside the door, and very likely a concrete walkway around the rear of the
building as well. Given the specific facts and circumstances of Seawink's site plan, I do not
agree with the neighbors that such a landing and walkway would encroach on the required thirty-
foot buffer in such a way that variance would be required. First, looking to Section 6.5 of the
Ordinance, a fully- vegetated buffer is not required. Section 6.5 requires dense screen of
vegetation at least six feet in height in the center of the buffer, and "whenever possible, existing
trees and ground -cover should be preserved in this strip." I conclude that the site plan shows
more than adequate space to accommodate a walkway without interfering with the dense
vegetated screen required at the center of the buffer strip.
I further conclude that, in the context of Seawink's plan, the existence of a landing and
walkway in the buffer do not harm the purpose and intent of the buffer, which is to provide
visual screening and noise mitigation. It is clear from the plans that the door shown at the rear of
the first floor would serve only the shared stairway between the two second -floor residential
units — there is no access shown from the ground floor commercial units. Both second -floor
residential units also share a stairway leading to a street level door at the front of the structure.
Both ground floor commercial units have single doors opening out to the front. The weight of
the evidence suggests, and I conclude, that the primary access to the second floor units is through
the doors at the front, or eastern -most, part of the structure. Logic dictates that the primary
means of ingress and egress would be toward the part of the building facing the parking area and
the street. As such, I find that the nature of the door in the rear of the structure would provide
only secondary, or emergency, ingress and egress. If the Building Commissioner requires that a
35
widening the parking stall depicted as number 16 on the plan from 8 feet to 8.5 feet.
The neighbors press a number of challenges to the Planning Board's decision on remand,
arguing that the site plan was not entitled to be approved because it depicts zoning violations
which would require a variance. First, the neighbors argue that, as submitted, the plans show a
rear door for the proposed new structure which opens into the required thirty foot buffer zone, in
violation of 780 C.M.R. 1006.3: "all exits shall discharge directly at a public way or at a yard,
court or open space of the required width and size to provide all occupants with a safe access to a
public way." The neighbors also point to 780 C.M.R. 1002.1, which defines exit discharge as
"that portion of a means of egress between the termination of an exit and a public way." 780
C.M.R. 1002.1 further defines means of egress as:
"A continuous and unobstructed path of travel from any point in a building or
structure to a public way . A means of egress consists of three separate and distinct parts:
the exit access; the exit; and the exit discharge. A means of egress comprises the vertical
and horizontal means of travel and shall include ... horizontal exits, courts and yards."
The neighbors then argue that the "exit discharge" from the rear door, which would presumably
consist of a landing for the door itself, as well as a walkway along the rear and south side of the
building providing access to the front walkway, would encroach on the required buffer and
require a variance. In its November 7, 2006 decision on remand, the Planning Board found that
despite the evidence and testimony provided to it on this issue, a determination of building code
requirements not only fell outside the scope of my remand order, but also fell within the
jurisdiction of the Building Commissioner rather than the Planning Board. In the interests of
judicial efficiency and economy, I will seek to forestall further delay in this matter which might
arise from subsequent administrative proceedings and decide this issue.
34
land use regulation.
Nevertheless, where the parties have fully tried this matter, and have participated in the
remand I ordered after trial, there ought to be at least, based on the evidence I have received, a
determination whether the site plan most recently reviewed by the Planning Board was entitled
to be approved. I am able to make such a determination by reaching the claims for declaratory
relief asserted by the neighbors, and find it in the interests of justice to do so in these cases.
The site plan which I consider is the site plan which was last submitted to the Planning
Board on remand, and which received a favorable vote granting approval with conditions in the
Planning Board's decision dated November 7, 2006. In that decision, the Planning Board
reaffirmed its April 6, 2004 decision granting approval of the site plan which had been submitted
and approved with conditions. The only difference between the two plans considered by the
Planning Board initially and on remand was that — despite the limited scope of my remand order
— the board considered on remand a revised "Layout and Planting Plan," numbered sheet 3 of 8
and stamped as "Progress Print," dated November 2, 2006, which had been submitted by Huntley
Associates, P.C. The "Progress Print" plan reflected only two related changes from the site plan
which was at issue during the trial. On the "Progress Print" plan, the fire department's concern
regarding access to the rear building, which had been expressed to the City Planner regarding
Seawink's initial site plan submitted in 2004, was addressed by expanding the five foot access to
the east side of the proposed rear structure to eight feet. To accommodate the widened access,
the snow storage area was eliminated from the north side of the property at the edge of the
parking area between the two structures and the two parking stalls numbered 17 and 18 were
shifted approximately three feet to the north. This change also had the concomitant effect of
remedying one of the zoning concerns identified by the neighbors through testimony at trial,
33
certification of the City Clerk that twenty (20) days have elapsed after the decision has
been filed in the Office of the City Clerk and no appeal has been filed or that if such
appeal has been filed, that it has been dismissed or denied, is recorded in the Hampshire
County Registry of Deeds."
Here, the Building Commissioner denied Seawink's July 13, 2006 application for building
permits on that basis that Seawink failed to provide a copy of a site plan approval decision that
had been recorded at the Registry. I find that the Building Commissioner, treating the site plan
approval decision as a special permit for purposes of satisfying the appeal period requirement
under Section 4.11, did not err in declining to issue a building permit. As discussed supra, the
Planning Board's May 12, 2006 site plan approval decision was, of course, the subject of
Gougeon's G. L. c. 40A, § 17, appeal (as well as her G. L. c. 40A, § 8, appeal to the ZBA) and
thus could not be recorded. The Building Commissioner acted properly under the relevant
provisions of the Ordinance, and I therefore conclude that the ZBA did not err, or act in an
unreasonable, whimsical, capricious or arbitrary manner in denying relief to Seawink.
In light the of the rulings I have made, none of the G. L. c. 40A, § 17 appeals that have
been filed in these cases remain before me for decision in a way which allow me to review the
Planning Board's action on the most recent site plan application. Often, the pathway to judicial
review of site plan decision - making by local planning boards is, based on the controlling
statutory and decisional law, a long, frustrating, twisting one. That law, until it is changed,
requires that multiple steps be taken administratively within the municipality before a court may
directly reach and decide the ultimate issues about the correctness of the site plan determinations
of the planning board. The multiplicity of overlapping actions now before the court, and the
current posture of them, exemplify the need for legislative attention to this aspect of municipal
32
I also conclude, for substantially the same reasons, that the court lacks jurisdiction to
decide the neighbors' post- remand § 17 claim for judicial review. On remand, the Planning
Board was not acting as a "special permit granting authority," but rather continued to conduct the
type of non - discretionary site plan review as envisioned under the Y.D. Dugout line of cases. I
must dismiss this count.
I now decide the remaining G. L. c. 40A, § 17, claim for judicial review before me,
Seawink's appeal from the ZBA's August 11, 2006 decision, which upheld the Building
Commissioner's decision declining to issue building peiuiits. In an appeal pursuant to G. L. c.
40A, § 17, "a judge determines the legal validity of a zoning board decision on the facts found
by him; he gives no evidentiary weight to the board's findings." Roberts v. Southwestern Bell
Mobile Systems, Inc., 429 Mass. 478, 486 (1999); Britton, 59 Mass. App. Ct. at 72.
Section 11.2 of the Ordinance provides that "no Building Permit, Zoning Peuuit, or
Special Permit shall be issued for the following "Intelulediate Projects" prior to the review and
approval of a Site Plan in accordance with this section." Section 11.4 of the Ordinance states
that:
"These requirements are superimposed over any other requirements of this
Zoning Ordinance. The Building Commissioner may not issue any Building or Zoning
Permits for any Intenuiediate or Major Projects until the Site Plan has been approved by
the Planning Board. The Planning Board shall conduct the Site Plan process in
conformance with the filing, review and public hearing requirements for a Special
Permit."
Section 4.11 of the Ordinance, providing for appeal periods, states:
"no ... special peuuit ... shall take effect until a copy of the decision bearing the
31
authority ... may appeal." "The only decisions of the planning board that are appealable to the
courts directly are those in which the planning board has acted as a "special permit granting
authority." Quincy, 39 Mass. App. Ct. at 20 -21. For the reasons I explain below, I conclude that
the Planning Board was not acting as a "special permit granting authority" when it granted site
plan approval to Seawink.
"[W]here the proposed use is one permitted by right the planning board may only apply
substantive criteria consistent with Prudential Ins. Co. of America v. Board of Appeals of
Westwood, 23 Mass. App. Ct. 278 (1986) (i.e., it may impose reasonable terms and conditions
on the proposed use, but it does not have discretionary power to deny the use)." Quincy, 39
Mass. App. Ct. at 21 -22. Seawink's April 6, 2006 site plan review application, upon which the
Planning Board issued its May 12, 2006 decision granting site plan approval (and upon which
the Planning Board reaffirmed its May, 12, 2006 decision on remand), sought site plan review
only under Section 11.2 of the Ordinance as an intermediate project. Section 11.6 of the
Ordinance sets out the approval criteria by which the Planning Board must conduct the site plan
approval process, providing that "the Planning Board shall find that the [enumerated] conditions
are met" (emphasis supplied). The use of the word "shall ", coupled with the broader context in
which the Ordinance authorizes the site plan review process, leads me to the conclusion that the
Planning Board's role was limited to determining whether the specific use and area criteria in the
Ordinance were satisfied — under Prudential, the Planning Board did not have discretionary
power to deny approval, but instead was bound to impose reasonable terms and conditions on the
proposed use. I conclude, then, that the Planning Board was not acting as a "special permit
granting authority," and therefore the court lacks jurisdiction over this appeal under G. L. c. 40A,
§ 17. Accordingly, I will enter judgment of dismissal in this case.
30
successfully obtain building permits from the Building Commissioner. At that point, Gougeon
could have complained to the Building Commissioner and requested that enforcement action be
taken against Seawink. If the Building Commissioner then declined her request, Gougeon could
have appealed from the adverse determination to the ZBA, which would then have jurisdiction
under § 8 to hear her complaint. I conclude that here, where Gougeon's purported § 8 appeal
was not premised on the action of a local zoning administrator as required under the statute,
Gougeon failed to exhaust the administrative remedies available to her. I find and rule that the
ZBA did not err in denying relief, and accordingly, I will enter judgment dismissing the 40A, §
17, claim in this case. Gougeon's complaint in this case, in which she is joined by neighbors
Bird and Wellman, also asserts claims for declaratory relief pursuant to G. L. c. 40A, § 14A, as
well as G. L. c. 231A. I address those remaining counts below.
Before addressing the remaining declaratory counts in the neighbors' complaint, I decide
whether the court has jurisdiction to entertain Gougeon's G. L. c. 40A, § 17, appeal from the
Planning Board's site plan approval decision which was filed directly in the Superior Court.
"The Zoning Act, G. L. c. 40A, does not specifically recognize site plans as an independent
method of regulation ... [citations omitted] however, the use of site plan approval as a
permissible regulatory tool for controlling the aesthetics and environmental aspects of land use
has been recognized since Y.D. Dugout, Inc.. v. Board of Appeals of Canton, 357 Mass. 25, 31
(1970)." Dufault, 49 Mass. App. Ct. at 138 -39 (2000). General Laws c. 40A, § 17, provides:
"any person aggrieved by a decision of the board of appeals or any special permit granting
12 I note here that, before the Building Commissioner could have issued permits to Seawink, Seawink was
required to present a copy of its site plan approval decision, showing that it had been recorded in the Registry.
Seawink did not apply to the Building Commissioner for permits until after Gougeon had already filed her § 8 appeal
to the ZBA and her § 17 appeal in the Superior Court. Because Seawink was unable to record the site plan approval
decision during the pendency of those appeals, the Building Commissioner declined to issue permits to Seawink.
29
May 30, 2006, Gougeon filed, pursuant to G. L. c. 40A, § 8, an appeal with the ZBA, from the
Planning Board's site plan approval decision. On the following day, Gougeon also filed an
appeal of the Planning Board's decision in Hampshire Superior Court seeking direct judicial
review under G. L. c. 40A, § 17. The ZBA held a hearing on Gougeon's appeal, but determined
that it lacked jurisdiction under G. L. c. 40A, § 8, and issued a decision denying relief.
Gougeon, joined by the other neighbors, then filed a G. L. c. 40A, § 17, appeal from the ZBA's
decision. After this case was remanded to the Planning Board at the end of trial, I allowed the
motion of the neighbors, envisioned by the remand order, to amend their complaint adding a new
G. L. c. 40A, § 17, appeal from the Planning Board's decision reaffirming the grant of site plan
approval.
First, I must decide whether the ZBA erred in denying relief based on its determination
that it lacked jurisdiction to entertain Gougeon's G. L. c. 40A, § 8, appeal from the Planning
Board's decision. "An appeal to the zoning board pursuant to § 8 has, as a jurisdictional
prerequisite, action by an administrative officer, "the inspector of buildings, or other
administrative official." Cumberland Farms, Inc. v. Planning Bd. of Bourne, 67 Mass. App. Ct.
67, 69 (2006), see also Dufault v. Millennium Power Partners, L.P., 49 Mass. App. Ct. 137, 140
(2000). Exhaustion of administrative remedies is required before obtaining judicial review of an
action by a local zoning administrator, which means that a person aggrieved by an action of the
zoning administrator must first seek redress through the local board of appeals. Quincy v.
Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17, 20 (1995). For the ZBA to have had
jurisdiction over Gougeon's appeal under § 8, Seawink first would have had to apply for and
28
Similarly, I consider only briefly Seawink's unsubstantiated constitutional challenge to
the Ordinance. Seawink makes no specific assertion that Section 6.5 of the Ordinance, as
applied and adopted, infringes any of its constitutional rights, nor does Seawink point to a
suspect class, a burden on a fundamental right or any other reason warranting heightened judicial
scrutiny. An ordinance, and any provision of it, must bear a rational relationship to a legitimate
government interest to be valid under the Massachusetts and United States Constitutions.
Fragopolous v. Rent Control Bd. of Cambridge, 408 Mass. 302, 306 -7 (1990). "The
constitutional test, which is easier to state than to apply, is whether the by -law is `clearly
arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or
general welfare'." Sturges v. Town of Chilmark, 380 Mass. 246, 256 (1979), quoting Euclid v.
Ambler Realty Co., 272 U.S. 365, 395 (1926). The only question to be determined is whether
the evidence before me establishes some justification for the City's determination to adopt an
Ordinance requiring screening between zoning districts, as reasonably related to a legitimate
public interest. See Sturges, 380 Mass. at 258. As I concluded above, the buffer requirement is
intended at the very least to protect against noise and light generated in a business district from
spilling into a residential district. As applied to Seawink, Section 6.5 of the Ordinance is
constitutional.
Before I can reach the site plan approval decision centrally at issue in this case, I must
decide a remaining threshold issue which is jurisdictional in nature. The neighbors seek judicial
review of the Planning Board's May 12, 2006 decision granting site plan approval, as well as the
Planning Board's November 7, 2006 remand decision (reaffirming the May 12, 2006 site plan
approval decision), pursuant to G. L. c. 40A, § 17. In bringing their two G. L. c. 40A, § 17,
appeals, Gougeon and the other neighbors have followed two different procedural routes. On
27
enabling statute or the Home Rule Amendment (art. 89 of the Amendments to the Massachusetts
Constitution)." Springfield Preservation Trust, Inc. v. Springfield Library and Museums Ass'n,
Inc., 447 Mass. 408, 418 (2006) , Beard v. Salisbury, 378 Mass. 435, 439 -440 (1979). "Plaintiffs
bear a heavy burden in demonstrating that a local ordinance exceeds statutory authority."
Springfield Preservation Trust, Inc., 447 Mass. at 418, citing Grace v. Brookline, 379 Mass. 43,
49 -50 (1979). In support of their argument that the City lacked authority under the Zoning Act,
G. L. c. 40A, to adopt Section 6.5 of the Ordinance, Seawink cites the the Beard case, supra.
The Beard case — where the Supreme Judicial Court affirmed a trial court judge's ruling that a
by -law of the Town of Salisbury, which prohibited any person from removing earth from the
town, was unconstitutional — is inapposite. Here, the Zoning Board required Seawink to replant
specific species and sizes of trees in specific locations because it determined that Seawink had
already violated Section 6.5 of the Ordinance by removing the required vegetated buffer between
zoning districts. It is beyond dispute, and Seawink concedes as much, that a municipality may
lawfully enact an ordinance requiring a buffer zone between zoning districts. An ordinance
which requires the existence of a vegetated buffer, which serves to screen the type of noise and
light occurring on a property located in a business district from a property located in a residential
district, bears a substantial relationship to the protection of public health and safety. I conclude,
in the circumstances of this case, Section 6.5 of the Ordinance does not exceed the authority
conferred by the Zoning Act and Seawink may properly be required to replant and maintain the
required buffer."
" I reject Seawink's argument that cutting trees in the buffer zone equates to an alteration of a pre - existing
use which did not violate Section 6.5 of the Ordinance. There is no dispute that the trees constituting the buffer
existed on Seawink's property at the time the Ordinance was enacted in 1991. The property only ceased to conform
with the requirement to maintain a buffer between districts, and therefore stood in violation of Section 6.5, at the
point Seawink caused the trees to in the buffer to be cut down.
26
Planning Board's May 12, 2006 decision granted conditional approval to that plan. Although
Seawink's plan showed a dumpster located in the buffer, the Planning Board's May 12, 2006
decision, as one of the conditions for approval, also required that there be no dumpster located
anywhere on the site (including the buffer). On remand, the Planning Board's November 7,
2006 decision reaffirmed the May 12, 2006 site plan conditional approval decision, incorporating
by reference both the planting plan for the buffer as well as the condition that no dumpster be
located anywhere on the site. Now intending to proceed with that same site plan, as approved
with conditions by the Planning Board, and which incorporates the contested plantings and
condition barring a dumpster, Seawink's challenges regarding aspects of the earlier plan no
longer viable are moot.
I also consider Seawink's challenges (although raised in a cursory and largely
unsubstantiated manner) to the constitutionality and lawfulness of Section 6.5 of the Ordinance
as applied to its property. Specifically, Seawink argues that it is being required to maintain
specific vegetation between its property located in the GB zoning district and the adjoining
residential district, and that such a requirement lacks a rational relation to public health, safety
and morals or welfare, and lies beyond the authority of the Ordinance to regulate. Seawink also
argues that the requirement to obtain site plan approval before removing trees from a buffer zone
exceeds the authority of the Ordinance.
"Local regulations are presumed valid, unless they exceed the authority conferred by the
10 Even if I were to conclude otherwise — i.e., deciding that Seawink's challenges to the conditions required
by the Planning Board were not moot — I would not likely rule in Seawink's favor. "Site plan review [ ] is not
without some teeth. `A board possesses discretion to impose reasonable conditions under a by -law's requirements in
connection with approval of a site plan, even if the conditions are objected to by the owner or are the cause of added
expense to the owner'." Castle Hill Apartments Ltd. Partnership v. Planning Bd. of Holyoke, 65 Mass. App. Ct.
840, 846 (2006).
25
Seawink went back before the Planning Board on several revised versions of its site plan
proposal (as I noted above with regard to the board's denial of the special permit), and ultimately
obtained site plan approval of a different site plan. Both the site plan dated April 3, 2006, which
was approved by the Planning Board's May 12, 2006 decision, as well as the November 2, 2006
"Progress Print" version of the April 3, 2006 site plan, which was approved by the Planning
Board's November 7, 2006 decision after remand, depict a vegetated buffer which meets or
exceeds the thirty-foot required minimum width along the entire boundary line of the GB
district. There is no dispute that Seawink intends to go forward on a site plan having a thirty-
foot buffer, and therefore no approval of a width reduction — whether in the form of a
discretionary special permit or site plan review — is required from the Planning Board under
Section 6.5 of the Ordinance.
Seawink also challenges so much of the ZBA's October 26, 2004 decision as overturned
the Building Commissioner's acceptance of Seawink's revised replanting plan for the buffer, and
directed Seawink instead to submit a revised replanting plan showing, with several
modifications, the same plantings in the buffer which had been depicted in the site plan to which
the Planning Board had denied approval. In addition, Seawink challenges that part of the ZBA's
October 26, 2004 decision that ordered removal of a dumpster from within the buffer. For
substantially the same reasons expressed above with regard to the question of the width of the
buffer, I Conclude that Seawink's challenge to the ZBA's decision is now mo Seawink
submitted to the Planning Board in 2006 a site plan depicting precisely those plantings required
under the ZBA's decision — e.g., trees which were to be ten feet in height upon planting,
arborvitae which were to be ten feet tall to be planted along the western property boundary, six
red oak trees which were to be a minimum of three inch caliper upon planting, etc. — and the
24
in the evidence to sustain the Planning Board's denial, I rule that the Planning Board did not
apply the criteria in an unreasonable, whimsical, capricious or arbitrary manner, and properly
exercised its discretionary power of denial.'
A related issue is Seawink's challenge to so much of the Planning Board's May 5, 2004
decision as denied site plan approval under Section 6.5 for a reduction in the thirty -foot width of
the required buffer. Section 6.5 of the Ordinance provides that the Planning Board may grant
site plan approval for up to a ten foot reduction in the required thirty foot width of the vegetated
buffer between the GB district and the adjoining residential district, upon making a finding that a
"sight impervious wall or fence is erected of appropriate materials and sufficient height to screen
abutting properties and will provide at Least as much noise mitigation as the [thirty -foot wide]
vegetated barrier described above." Seawink argues that judicial review of the aspect of the
Planning Board's decision that denied the request for a buffer -width reduction should be
governed by the statutory and decisional law of special peiiiiits rather than site plan review.
Seawink then argues, apparently in the alternative, that the Planning Board failed to make
adequate findings to support a decision denying its request under special permit standards and
therefore should have granted site plan approval under the decisional law governing site plan
review. Because I conclude that Seawink's challenge as to this issue is moot, I need not and do
not decide whether, applying either special permit or site plan review standards, the Planning
Board erred in denying Seawink's request for a reduction in the required thirty-foot buffer width.
9 Two other Planning Board decisions granting special permits under Section 5.2, allowing first floor
residential use in the GB district, were introduced into evidence. There was also testimony, which I credit, that those
two Planning Board decisions, together with the challenged decision in this case, represent the entire universe of
three applications for first -floor use in the GB district which the Planning Board has considered. I accord these other
decisions about other sites little weight in my decision, however. Exhibits introduced into evidence during the trial
included two attested copies of agreements for judgment that were entered into by the parties involved in these other
decisions; these had the effect of annulling those same two special permits.
23
found for itself, whether the board has denied the application by applying those criteria and
standards in an `unreasonable, whimsical, capricious or arbitrary' manner." Britton, 59 Mass.
App. Ct. at 74. This second inquiry is "highly deferential." Id.
The applicable version of section 5.2 of the Ordinance gave the Planning Board
discretion to allow residential use on the first floor in the GB business district by special permit
"if the primary use of the first floor is commercial and such use encourages a more active street
life." In its findings, the Planning Board's May 5, 2004 decision stated that "the primary use of
the first floor would not be commercial and the Board did not find that the residential component
would encourage a more active street life," as well as that "the requested use would not promote
City planning objectives as determined by [the] Florence Center Plan and hearings held by the
Planning Board on the long term uses most appropriate for the ground floor within the [GB]
district." Giving deference to the board's interpretation of the ordinance, I conclude that the
Planning Board properly considered and determined whether the nature and scope of the
proposed residential use fit within the long -term planning goals for the business district, and I
further conclude that the Planning Board applied the proper criteria in deciding to deny the
special permit. Britton, 59 Mass. App. Ct. at 73. I find that Seawink's proposal for first floor
residential use, while potentially providing additional housing units in the downtown area of
Florence, would also likely upset the balance sought to be struck in favor of commercial use at
the street level in the business district. As the party attacking the Planning Board's decision,
Seawink was obliged to put on evidence showing legal or factual infiiiiiity with the decision.
Seawink did not offer much if any evidence on this score (perhaps understandably given that
Seawink's focus by the time of trial was on the latest iteration of its development proposal rather
than this one). Given the lack of a sufficient showing by Seawink, and finding a sufficient basis
22
Seawink's special permit application.
Although Seawink may not have waived expressly its right to judicial review of the
Planning Board's denial of the special permit by doing so, Seawink did go back before the board
on subsequent iterations of its site plan which did not include the first floor residential use
component. Seawink ultimately prevailed on a later version of its plan, winning a decision from
the board granting site plan approval. It is clear that Seawink intended to go forward on these
revised versions of its site plan proposal with solely commercial use on the first floor, rather than
the earlier proposal which required a special permit. Nonetheless, I reach the merits of
Seawink's appeal and conclude that there was no error.
Judicial review of a decision of a special permit granting authority, pursuant to G. L. c.
40A, § 17, is conducted de novo, with the court giving no evidentiary weight to the findings or
decision of the board. See Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295
(1972); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72 (2003). There
is no absolute right to a special permit, and the board has discretion to deny an application.
MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970), citing to Gulf Oil
Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277 (1969). "The decision of the
board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable,
whimsical, capricious or arbitrary." MacGibbon, 356 Mass. at 639 (1970); Britton, 59 Mass.
App. Ct. at 72. The court must first determine whether the board's decision was based on "a
legally untenable ground," giving some measure of deference to the local board's interpretation
of its own zoning by -law. Id., citing to APT Asset Mgmt., Inc. v. Board of Appeals of Melrose,
50 Mass. App. Ct. 133, 138 (2000). If the court determines the board made its decision based on
the proper criteria and standards, "the court then must deteunine, on the basis of the facts it has
21
hearing, upheld the Building Commissioner's denial in its August 11, 2006 decision. Seawink
filed a G. L. c. 40A, § 17, appeal of the ZBA's decision on August 17, 2006. The ZBA
determined that the Building Commissioner correctly denied Seawink's application for a permit
in light of Seawink's inability to provide a recorded site plan approved by the Planning Board.
* * * **
After trial and remand, the central issue for decision in these five related cases is the
validity of the November 7, 2006 decision on remand of the Planning Board granting conditional
site plan approval to Seawink. The neighbors' post -trial memorandum focuses almost
exclusively on their challenge to the Planning Board's decision granting site plan approval.
Seawink argues, of course, in favor of upholding the site plan approval decision, but also raises a
number of other issues. I must decide several of these other issues first, before I can reach the
challenged site plan approval decision.'
I begin by considering Seawink's challenge to the Planning Board's May 5, 2004
decision denying Seawink's application for a special permit under Section 5.2 of the Ordinance
(allowing residential use on the first floor), as well as denying Seawink's requests for site plan
approval under Section 6.5.1.B (for a reduction in the required width of the thirty-foot buffer),
and under Section 11.3.5 (as a major project). Seawink challenges so much of that decision as
denied Seawink's application for a special permit to allow residential use on the first floor. On
the evidence before me, I find and rule that the Planning Board did not err in its decision denying
s Under G. L. c. 40A, §17, only "persons aggrieved" have standing to appeal a decision of a zoning board
of appeals or permit - granting authority. Direct abutters are "parties in interest" under G. L. c. 40A, § 11, entitled to
notice of public board hearings and decisions, and therefore enjoy a rebuttable presumption as "persons aggrieved."
Marashlian, 421 Mass. at 721; Watros v. Greater Lynn Mental Health & Retardation Association, Inc., 421 Mass.
106, 111 (1995). The presumptive standing of the neighbors as persons aggrieved has not been challenged, and I
conclude that I have proper plaintiffs before me.
20
(Notwithstanding this statement in the Planning Board's decision, after these consolidated
appeals were before the court, I expressly found after trial, as a result of the evidence I heard,
and as set out in the September 20, 2006 remand order in this case, that the Planning Board
neither solicited nor obtained comments from the fire department as to Seawink's revised April
3, 2006 plan.)
Gougeon filed, on May 30, 2006, a G. L. c. 40A, § 8, appeal to the ZBA from the
Planning Board's decision granting site plan approval. Her appeal to the ZBA cited to Section
11 as the relevant section of the ordinance, and complained that the size and scale of Seawink's
proposed structure would not leave sufficient space to accommodate an undisturbed thirty-foot
buffer, as well as claiming that both fire access and access for disabled persons were inadequate.
Gougeon also filed, on May 31, 2006, a G. L. c. 40A, § 17, appeal in Hampshire Superior Court
seeking direct judicial review of the Planning Board's site plan approval decision. The ZBA
held a public hearing on Gougeon's appeal from the Planning Board's decision granting site plan
approval to Seawink, and based on its determination that it lacked jurisdiction to hear the appeal,
it issued a decision, dated July 14, 2006, denying relief. Gougeon, as well as neighbors Bird and
Wellman, then filed a G. L. c. 40A, § 17, appeal from the ZBA's decision.
By application dated July 11, 2006, Seawink, having obtained a site plan approval
decision from the Planning Board, sought permits from the Building Commissioner. The
Planning Board's site plan approval decision, however, which was already the subject of
Gougeon's G. L. c. 40A, § 17, appeal filed in Hampshire Superior Court, was not able to be
recorded during the pendency of the litigation. The building inspector denied Seawink's
application because it lacked the necessary copy of the recorded site plan approval decision.
Seawink appealed the Building Commissioner's denial to the ZBA, which, after holding a public
19
department. She received comments back from the fire department expressing the concern that,
upon review of the plans, there did not appear to be adequate emergency access shown. The
Planning Board held a public hearing, where it took comments from, among others, the city
planner. Her comments and recommendation to the Planning Board included the concern
expressed by the Fire Department about insufficient fire access. The Planning Board issued its
decision on February 1, 2005, denying site plan approval on the grounds that Seawink's proposal
presented numerous intractable problems, including inadequate fire access. The decision
acknowledged, however, that a reconfigured proposal showing a smaller footprint with adequate
emergency access and snow storage, and which removed a dumpster from the vegetated buffer
zone, might be submitted to satisfy the site plan approval criteria.
On April 6, 2006, Seawink again applied to the Building Commissioner for a zoning
permit, submitting a newly- revised plan, dated April 3, 2006, which reflected changes addressed
by the Planning Board's February 1, 2005 decision. In due course, the Building Commissioner
turned down Seawink's application on the grounds that it required site plan approval under
Section 11 as an intermediate project. Seawink then filed its third application with the Planning
Board, seeking the necessary site plan approval under Section 11. The Planning Board held a
public hearing, and in its decision dated May 12, 2006 and received by the City Clerk on the
same day, granted site plan approval with conditions, based on a number of findings.' Among
the findings reported in the decision, the Planning Board found that Seawink's proposal would
not overload, and would mitigate, adverse effects on the City's fire protection interests, as well
as that "the fire department expressed no concerns on access to the rear building."
' The Planning Board's decision imposed several conditions of approval, including a requirement that
revised plans be submitted showing changes to drainage, as well as several changes to the buffer area, before
building permits could be issued.
18
G. L. c. 40A, § 8, appeal of the Building Commissioner's decision with the ZBA. After holding
a public hearing, the ZBA issued its October 26, 2004 decision upholding in part and reversing
in part the Building Commissioner's decision. The ZBA's decision affirmed so much of the
Building Commissioner's enforcement order as found the removal of the buffer to be a violation
of Section 6.5 of the Ordinance, but overturned the Building Commissioner's decision accepting
Seawink's revised re- planting plan. The ZBA decision directed Seawink to submit a revised
re— planting plan for the buffer which was to show, with several modifications, those same
plantings depicted on the plan Seawink had earlier submitted to the Planning Board as part of its
initial special permit and site plan review application. Seawink filed a complaint, a G. L. c. 40A,
§ 17 appeal from the ZBA decision, as well as asserting a claim for declaratory relief, on
November 10, 2004.
After being turned down by the Building Commissioner on its May 14, 2004 re-
application for a zoning permit, Seawink re- applied to the Planning Board on June 17, 2004,
seeking site plan review of its revised proposal as an "inteiniediate project" under Section 11.2.
Section 11.2 provides, in relevant part:
"No Building Pellnit, Zoning Permit or Special Permit shall be issued for the
following "Intermediate Projects" prior to the review and approval of a Site Plan in
accordance with this section: (1) Projects ... which involve new construction or
additions of not less than 2,000... square feet of gross floor area. (2) Projects for which
the Zoning Ordinance requires the provision of 6 -9 additional parking places ... ".
Seawink's revised plan, dated June 1, 2004, proposed construction of a new, separate two -story
building with two apartment units on the second floor and commercial space on the first floor
(eliminating the need for Seawink to request a special peuuit for residential use on the first
floor), located adjacent to the existing building. In accordance with the city's usual practice, city
planner Carolyn Misch reviewed the plans, and also distributed them to, among others, the fire
17
residential use on the first floor would not be harmonious with the general purpose and intent of
the Ordinance and would not encourage a more active street life. It is clear that this finding
supported the decision denying the request for a special permit under Section 5.2. In addition,
the Planning Board made the finding in its decision that insufficient information had been
provided to substantiate the request to reduce the width of the required buffer. This finding
clearly supported the decision denying site plan approval for a reduction in the width of the
required buffer under Section 6.5. Seawink filed its G. L. c. 40A, § 17, appeal from the decision
on May 13, 2004.
On May 14, 2004, Seawink re- applied to the Building Commissioner for a zoning permit,
submitting a revised plan that proposed construction of a two -story addition (reduced from the
earlier proposal to build three stories) consisting of commercial space on the first floor
(eliminating the need for a special permit for residential use) and two apartment units on the
second floor, as well as an addition to the existing parking. The Building Commissioner turned
down Seawink's revised application on the grounds that an additional permit was nonetheless
required, this time approval following site plan review as an "inteiniediate project" under
Section 11.2 (rather than a "major project ").
During this time, on a separate track, there were further proceedings under the Building
Commissioner's November 2003 enforcement order. On May 4, 2004 (after the April 22, 2004
public hearing held by the Planning Board on Seawink's site plan review and special permit
application, but before the Planning Board issued its May 12, 2004 decision denying those
requests) the Building Commissioner accepted a revised re- planting plan from Seawink. In
response, Loretta Gougeon filed a written complaint with the Building Commissioner objecting
to the decision accepting Seawink's re- planting plan. Gougeon then on May 20, 2004 filed her
16
Section 11.3.5, governing projects requiring site plan approval as major projects, provides:
"No Building Permit, Zoning Permit, or Special Permit shall be issued for the
following `Major Projects' prior to the review and approval of a Site Plan in accordance
with this Section ... (5) Projects for which the zoning ordinance requires 10 or more
additional parking spaces over the zoning requirements for the previous use."
On all the evidence, it appears that two distinct types of requests were before the Planning Board
for decision: a special permit request and site plan review. Seawink's application sought site plan
review and approval as to two aspects of its proposal: first, under Section 11.3.5 as a major
project, and second, under Section 6.5 to reduce the width of the required buffer between the GB
district and the abutting residential district. Seawink's application sought a special peiiiiit under
Section 5.2 allowing residential use on the first floor in the GB district.
After holding a public hearing, the Planning Board issued its decision on May 5, 2004,
denying site plan approval as well as denying the requested special permit. Although the
Planning Board made a number of findings in its decision, it did not expressly delineate or
identify which particular findings supported which particular aspects of its decision. The
findings made by the Planning Board included, among others, that the proposal would have a
negative effect on the surrounding residential properties, which would not be mitigated by the
size and type of buffer shown on the plan, disapproval of the parking configuration, that
residential use on the first floor would negatively affect the business district, that insufficient
infoiination had been provided to show that the proposal would not cause detrimental traffic and
safety effects, as well as that the proposal lacked mitigation of other potential adverse effects on
city resources. I am able to conclude that these findings generally supported the decision
denying site plan approval of the proposal as a "major project" under Section 11.3.5. The
decision also recites the finding that the proposal for mixed residential and commercial use with
15
n.2, and n.3, supra, I repeat them again here. Section 5.2 of the Ordinance, the Table of Use
Regulations, provided:
"In ... [the] GB ... district[ ]: All residential units must be located above the first
floor. Uses may be mixed in the building and, above the first floor, within each unit
within a building. In GB ... the Planning Board may allow, by Special Permit,
residential units on the first floor if the primary use of the first floor is commercial and if
such use encourages a more active street life. All uses normally permitted in these
districts are allowed. A Special Permit is required if a Special Penuiit would otherwise be
required for the use."
Section 6.5 of the Ordinance, governing screening and buffers in industrial and business
districts, provides: •
"Screening and buffers shall be required on any lot in any industrial or business
district and for any industrial or business use where it adjoins a lot in a residential district
.. as follows: A. This strip shall be at least thirty (30) f e e t in width ... It shall contain a
screen of plantings of vertical habit in the center of the strip not less than three (3) feet in
width and six feet in height at the time of occupancy of such lot. Individual shrubs shall
be planted not more than five (5) feet on center, and individual trees thereafter be
maintained by the owner or occupants so as to maintain a dense screen all year round. At
least fifty (50) percent of the plantings shall be evenly spaced. Whenever possible,
existing trees and ground -cover should be preserved in this strip, reducing the need to
plant additional trees. Trees may not be cut down in this strip without Site Plan Approval
(see §10.11). B. The Planning Board may issue a Site Plan Approval (see §10.11)
allowing for a ten (10) foot reduction in the required width of the landscaped buffer strip,
provided that the Board finds that a sight impervious wall or fence is erected of
appropriate materials and sufficient height to screen abutting properties and will provide
at least as much noise mitigation as the vegetated barrier described above.i
5 Although none of the evidence now before me indicates the date on which the relevant change was made,
it is undisputed that Section 5.2 of the Ordinance was amended on October 21, 2004, again on February 3, 2005 as
well as on November 3, 2005, and as amended, residential use on the first floor in the GB district is no longer
allowed by special permit under Section 5.2.
6 By agreement, the parties submitted into evidence at trial an exhibit marked as number two (2), which is
an amendment of the Ordinance, dated April 18, 1991, revising Section 6.5. Despite the apparent agreement of the
parties that Section 6.5 of the Ordinance was not amended after that date, I note that it was in fact amended on May
21, 1998. The text of Section 6.5 as it appears in agreed -upon exhibit number one (1), a copy of the entire
Ordinance dated June 23, 2006, differs materially from the text which appears in exhibit number two. For the
purposes of my decision in this case, I find and rule that the version of Section 6.5 of the Ordinance which was
relevant at all times in this case is the version as it appears in exhibit number one. I have set out the language of that
version here.
14
Ostrowski (who was then listed by the assessors as the owner of the property) the Building
Commissioner provided notice of the zoning violation and directed that a re- planting plan be
filed within thirty days from receipt of the letter.
The Building Commissioner received a subsequent written complaint from Gougeon on
November 24, 2003, complaining that the removal of the buffer was causing water drainage
runoff to flood her property, as well as offensive glare passing across Seawink's 52 Maple Street
lot, glare which emanated from the property located at 56 Maple Street just to the north —the
"Tobin Manor" property owned by the Northampton Housing Authority. Upon receiving the
Building Commissioner's notice of the zoning violation, Tecce had a re- planting plan prepared
by Huntley Associates, P.C., and submitted it to the Building Commissioner. The Building
Commissioner accepted the plan on February 4, 2004.
Separately and unrelated to the proceedings (described above) under the Building
Commissioner's November 2003 enforcement order, Tecce applied on January 22, 2004 to the
Building Commissioner for a zoning permit to construct a three -story addition, consisting of six
apartments, to the existing two -floor mixed -use building, as well as an addition to the existing
parking lot. The Building Commissioner denied the application on the basis that additional
permits —a special permit with site plan approval —were required under Sections 5.2 and 6.5 of the
Ordinance. With Seawink listed as owner and applicant, an application was submitted to the
Planning Board on February 27, 2004, seeking a special permit with site plan review to construct
the six apartment unit addition to the rear of the existing building at 52 Maple Street. Seawink's
application listed Sections 5.2, 6.5 and 11.3.5 as the applicable provisions of the Ordinance
under which Seawink sought action by the Planning Board.
Although the relevant portions of the Ordinance sections are set out in the margin at n.1,
13
most rear property line of the lot located at 42 Maple Street immediately to the south. As a
result, the boundary line of the GB zoning district which traces around the rear of the 52 Maple
Street lot juts out into the surrounding residential zoning district. The two lots lying west of 42
Maple Street and abutting the southern property line of 52 Maple Street are located in the
residential district, as is the lot which abuts the western-most, rear property line of 52 Maple
Street. Those three lots, located to the west and south of 52 Maple Street along West Center
Street, are where the parties Bird (19 West Center Street), Gougeon (15 West Center Street) and
Wellman (9 West Center Street) reside.
In late summer of 2003, David Tecce, the principal officer of Seawink, arranged to
purchase the property located at 52 Maple Street in Florence from Frederick Ostrowski —
although the actual purchase of the 52 Maple Street property by Seawink from Ostrowski was
not consummated until early 2004. During the fall of 2003, before Ostrowski conveyed the
property to Seawink, Tecce hired two people to cut trees and clear the interior of the property.
Tecce then hired another individual named Jeremy Cotton to cut trees on the perimeter of the
property. Sometime between October 10 and 13, 2003, Tecce learned from Cotton that abutters
to 52 Maple Street had visited the site to complain about the tree- cutting work.
Anthony Patillo, the building commissioner for Northampton ( "Building
Commissioner "), received a phone call from Loretta Gougeon on October 15, 2003, complaining
about the cutting. The Building Commissioner visited the site, and found that trees had been cut
down, resulting in the removal of the required buffer between the GB zoning district in which 52
Maple Street is located and the abutting residential district. Based on that, the Building
Commissioner determined that the property at 52 Maple Street was in violation of Section 6.5 of
the Ordinance. See n.2, supra. By letter dated November 10, 2003, and addressed to Fred
12
portions of the Code of Massachusetts Regulations. After the record was in this manner
supplemented, the parties, having waived by their counsel the opportunity to call further
witnesses, reconvene trial, or offer further closing argument, submitted post -trial legal
memoranda.
On all of the testimony, exhibits, stipulations and other evidence properly introduced at
trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into
account the pleadings, memoranda, and arguments of the parties, I make the following findings
of fact and rulings of law.
* * * **
Seawink is the owner of property located at 52 Maple Street in Florence, which consists
of a roughly rectangular lot oriented perpendicularly to Maple Street; the Seawink property runs
east -west along its longer dimension from the west side of Maple Street into the lot. An existing
structure on the property comprises space for commercial use on the first floor and two
residential apartments on the second floor, occupying the northeast corner of the lot —an area
somewhat less than one -fourth of the entire lot size. Maple Street runs roughly north - south, and
Seawink's property at 52 Maple Street is situated just south of the three -way intersection where
Middle Street, running, roughly east -west, ends at Maple Street.
The general business, or GB, zoning district includes all the properties along the west
side of Maple Street, bounded by the western -most rear property lines of the properties that have
frontage along Maple Street. To the west of the GB zoning district lies the urban residential, or
URB, district. The 52 Maple Street lot is deeper in length than the adjacent lot to the south along
Maple Street. In other words, the boundary of the GB zoning district, lying along the western-
most rear property line of Seawink's 52 Maple Street lot, projects further west than the western-
11
remand. The remand was limited solely to allow further consideration by the Planning Board, at
a duly- noticed public hearing, of the issues of fire safety and fire department access at Seawink's
property. In the margin of the order, I noted that, in light of objections by the neighbors, I
declined to issue a broader order of remand- despite Seawink's willingness to submit a new,
fourth version of its site plan that responded to the concerns raised at trial.
The Planning Board held a public hearing on November 2, 2006, where it heard
comments from, among others, the fire chief for Northampton. In addition, the Planning Board
received at the hearing a revised version of Seawink's plan, submitted by Huntley Associates,
P.C., dated November 2, 2006 and stamped "Progress Print." The "Progress Print" is a revised
version of the sheet entitled "Layout and Planting Plan," which Seawink submitted as part of the
site plan approved by the Planning Board on May 12, 2006, and is numbered page 3 of 8 pages,
dated April 3, 2006. The Planning Board issued its revised decision, dated November 7, 2006
and filed with the City Clerk the same day, re- affirming its grant of approval, with conditions, of
Seawink's site plan.
As directed by the remand order, the parties submitted a joint written status report after
the Planning Board's decision had been filed. Also in accordance with the remand order, the
neighbors submitted a motion for leave to amend their complaint in Miscellaneous Case No.
327327, adding a new claim asserting a right to judicial review of the Board's decision on
remand. A telephone status conference was held on December 15, 2006, at which time I allowed
the neighbors' motion for leave to amend their complaint. See n.4, supra. I also directed the
parties to supplement the trial record by submitting, in addition to the Planning Board's decision
(which already had been submitted, attached to the neighbors' amended complaint), the revised
"Progress Print" plan that had been submitted to the Planning Board and copies of the relevant
10
July 5, 2006 and August 10, 2006, between and after which the additional related cases were
filed in the Superior Court and in this court. Unable to reach agreement before trial as to a joint
pre -trial memorandum, the parties filed several revised versions.
Trial commenced on all five related cases on September 14, 2006, at the Hampshire
County Courthouse in Northampton. Immediately preceding the trial, in the presence of all
counsel and the parties, I took a view of the locus involved and the surrounding area, including
the properties of the neighbor abutters who are parties to several of these cases. Court reporter
Pamela St. Amand was sworn to transcribe the testimony. The trial continued for a second day
on September 15, 2006 at the courthouse in Northampton and concluded. Fifty -one exhibits
were introduced into evidence at the two -day trial, and the following witnesses testified:
Anthony Patillo (Building Commissioner for Northampton), Carolyn Misch (land use planner
and permits manager for Northampton), Duane Nichols (deputy fire chief for Northampton),
Mark McClusky (director of engineering at Huntley Associates, P.C., the civil engineering firm
that prepared Seawink's site plans for development of the 52 Maple Street property), David
Tecce (principal officer of Seawink, Ltd.), James Avery Smith (professional civil engineer and
land surveyor testifying as an expert witness on behalf of the private defendants), and Loretta
Gougeon (neighbor abutter to Seawink's property and party to several of these cases).
On the second day of trial, the neighbors, by their counsel, filed a motion for remand of
the Planning Board's May 12, 2006 decision granting site plan approval to Seawink. I heard
argument on the motion at the conclusion of trial, and from the bench I allowed the motion in
part. Finding, on the clear weight of the evidence at trial, that the Planning Board acted without
soliciting or obtaining comments from the Fire Department when it granted approval to
Seawink's third site plan, I issued an order, dated September 20, 2006, implementing the
9
appealing, pursuant to G. L. c. 40A, § 17, a decision of the ZBA upholding the Building
Commissioner's decision denying Seawink's application for a building permit. The events
giving rise to this fifth related case took place when, following the Planning Board's decision
granting site plan approval on May 12, 2006, Seawink applied to the Building Commissioner for
a building permit. The Building Commissioner denied Seawink's application on the grounds
that Seawink failed to provide, as required by the Ordinance, a copy of the approved site plan
recorded at the Registry of Deeds. Seawink was unable to submit the required copy of the
approved and recorded plan because the site plan approval decision, which is the subject of the
neighbors' appeal in Miscellaneous Case No. 327327, discussed supra, could not be recorded
during the pendency of the litigation. iSeawink appealed the Building Commissioner's building
permit denial to the ZBA, which upheld the Building Commissioner's denial, in a decision dated
Friday, August 11, 2006 and received by the City Clerk the same day. Seawink now seeks
judicial review of the ZBA's decision.
On October 17, 2005, in accordance with Mass. R. Civ. P. 42(a), I allowed, with the
assent of all parties, Seawink's motion to consolidate Miscellaneous Case No. 299010 with
Miscellaneous Case No. 303535. I held a pre -trial conference on February 26, 2006, where, in
light of Seawink's intention to file its revised site plan review application— to which the Planning
Board ultimately granted approval, giving rise to Hampshire Superior Court Civil Action
HSCV2006 -00120 (which I have been assigned to hear and decide as a Justice of the Superior
Court by interdepartmental judicial assignment order of the CJAM), as well as Land Court
Miscellaneous Case Nos. 327327 and 328392— I directed that trial would not be scheduled until
the Planning Board had issued a decision. The Planning Board's decision, as discussed supra,
issued May 12, 2006. Further status and scheduling conferences were held on June 14, 2006,
8
access, could meet the site plan approval criteria. Seawink did not appeal the Planning Board's
decision. Seawink filed a third application to the Planning Board for site plan review, dated
April 4, 2006. Following a public hearing on May 11, 2006, the Planning Board, in a decision
dated May 12, 2006 and filed with the City Clerk the same day, granted site plan approval with
conditions to Seawink's proposal to construct a new, mixed -use building comprised of two
second floor residential units and first floor commercial space, to be located to the rear of the
existing building. Gougeon seeks judicial review of the Planning Board's decision.
In Miscellaneous Case No. 327327, Gougeon, joined by Mark Bird and Fred Wellman,
who are also neighbor abutters to Seawink (collectively, the "neighbors "), filed a complaint on
August 3, 2006, appealing, pursuant to G. L. c. 40, § 17, a decision of the ZBA denying
Gougeon's G. L. c. 40A, § 8, appeal from the Planning Board decision granting site plan
approval to Seawink, and also seeking, pursuant to G. L. c. 240, § 14A, determination of the
applicability of unspecified provisions of the Ordinance to Seawink's property, as well as
asserting a claim for declaratory relief pursuant to G. L. c. 231A. This case arises from an
appeal filed by Gougeon, pursuant to G. L. c. 40A, § 8, dated May 30, 2006 and received by the
City Clerk the same day, to the ZBA from the decision of the Planning Board granting site plan
approval with conditions to Seawink. The ZBA held a duly- noticed public hearing, and based on
the finding that it lacked jurisdiction to hear Gougeon's appeal, issued a decision dated July 14,
2006, denying relief. The neighbors assert that they are aggrieved by the ZBA's decision and
seek judicial review as well as declaratory relief.'
In Miscellaneous Case No. 328392, Seawink filed a complaint on August 17, 2006,
4 On December 15, 2006, following the remand of this matter to the Planning Board after trial, I allowed the
plaintiffs' motion to amend their complaint to add a new claim in this case asserting a right to judicial review of the
Planning Board's decision on remand.
7
modifications, the same plantings depicted on the plan which Seawink had submitted to the
Planning Board as part of its February 27, 2004 application for a special permit and site plan
review — i.e., the plan which was denied by the Planning Board and which is the subject of
Seawink's G. L. c. 40A, § 17, appeal in Miscellaneous Case No. 299010, discussed supra.
Following the filing of this case, the court issued a citation by publication, giving public notice
of the G. L. c. 240, § 14A claim, in the Daily Hampshire Gazette on December 1, 2004 with a
return day of January 3, 2005. (On March 21, 2005, I referred this case to REBA Dispute
Resolution, Inc. for mandatory mediation screening, but the parties did not proceed to
mediation.)
On May 31, 2006, Gougeon filed the complaint in Civil Action HSCV2006 -00120 in
Hampshire Superior Court, appealing, pursuant to G. L. c. 40A, § 17, a decision of the Planning
Board approving a site plan review application by Seawink. Upon a joint request by the parties,
the Chief Justice for Administration and Management ( "CJAM ") issued, pursuant to G. L. c.
211B, § 9, par. (xxi), an order dated July 21, 2006, assigning me to sit simultaneously as a
Justice of the Land Court and the Superior Court for the purpose of hearing and determining this
related case.
This Superior Court case arose because, following the denial of its first application for a
special permit and site plan review, Seawink filed with the Planning Board a second application
for site plan review, dated June 11, 2004. The Planning Board held a public hearing, and in a
decision dated February 1, 2005, denied Seawink's request for site plan approval on the basis of
its findings that project presented a number of intractable problems relating to its size. The
Planning Board's decision acknowledged that another proposal for a revised project site plan,
showing a smaller footprint with uses requiring less parking, as well as adequate emergency
6
Commissioner as to the approval of a re- planting plan for the required buffer, and also seeking,
pursuant to G. L. c. 240, § 14A, determination of the validity of Section 6.5 of the Ordinance and
the extent to which it affects Seawink's property.
The ZBA decision which Seawink challenges in Miscellaneous Case No. 303535 arose
from a G. L. c. 40A, § 8, appeal filed by non - municipal defendant Loretta Gougeon
( "Gougeon "), an abutter of Seawink's property who resides at 15 West Center Street in Florence,
of an enforcement action taken by the Building Commissioner against Seawink. In response to a
complaint made by Gougeon in October, 2003 that trees had been cut down between her
property and the property located at 52 Maple Street (the property at the center of the dispute in
these related cases), the Building Commissioner performed an inspection and determined that
tree - cutting had taken place in violation of Section 6.5 of the Ordinance. The Building
Commissioner issued an enforcement order, directing that a plan to re -plant the buffer be
submitted for approval. Seawink submitted a re- planting plan, which was approved by the
Building Commissioner. Seawink later submitted a revised plan, dated April 30, 2004, which
the Building Commissioner also approved. Gougeon then filed her G. L. c. 40A, § 8, appeal to
the ZBA from the Building Commissioner's decision to accept Seawink's re- planting plan.
Following a public hearing held on September 23, 2004, by a decision dated October 26,
2004 and filed with the City Clerk on the same day, the ZBA upheld in part and reversed in part
the decision of the Building Commissioner. The ZBA affiuued the Building Commissioner's
decision that the tree- cutting on Seawink's property violated Section 6.5 of the Ordinance.
However, the ZBA decision went in Gougeon's favor concerning the revised re- planting plan;
the ZBA overturned the Building Commissioner's acceptance of Seawink's revised plan. The
ZBA instead ordered that Seawink submit a revised re— replanting plan showing, with several
5
•
and work space with residential use on the first floor.' Seawink also sought site plan review by
the Planning Board under two sections of the Ordinance. Pursuant to Section 6.5.1.B, Seawink
requested site plan approval of a reduction in the required thirty -foot width of the landscaped
buffer strip between the general business ( "GB ") district where the property is located and the
adjoining residential district.' Under Section 11.3.5, Seawink requested site plan review because
it proposed a "major project" which would require ten or more additional parking spaces than the
existing use.' Following a public hearing held on April 22, 2004, the Planning Board, based on a
number of reasons, denied Seawink's requests for a special permit, as well as for approval under
the Ordinance's site plan review provisions.
In Miscellaneous Case No. 303535, Seawink filed a complaint on November 10, 2004,
appealing, pursuant to G. L. c. 40A, § 17, from a decision of the Zoning Board of Appeals
( "ZBA "), whose members are defendants, overturning the decision of the Building
1 Section 5.2 of the Ordinance, the Table of Use Regulations, provides, in pertinent part:
"In ... [the] GB ... district[ ]: All residential units must be located above the first floor. Uses
may be mixed in the building and, above the f i r s t floor, within each unit within a building. In GB ... the
Planning Board may allow, by Special Permit, residential units on the first floor if the primary use of the
first floor is commercial and if such use encourages a more active street life. All uses normally permitted in
these districts are allowed. A Special :Permit is required if a Special Permit would otherwise be required for
the use."
2 Section 6.5 of the Ordinance, governing screening and buffers in industrial and business districts,
provides, in pertinent part:
"Screening and buffers shall be required on any lot in any industrial or business district and for any
industrial or business use where it adjoins a lot in a residential district ... as follows: A. This strip shall be
at least thirty (30) feet in width ... Trees may not be cut down in this strip without Site Plan Approval (see
§10.11). B. The Planning Board may issue a Site Plan Approval (see §10.11) allowing for a ten (10) foot
reduction in the required width of the landscaped buffer strip, provided that the Board finds that a sight
impervious wall or fence is erected of appropriate materials and sufficient height to screen abutting
properties and will provide at least as much noise mitigation as the vegetated barrier described above."
3 Section 11.3.5, which governs projects requiring site plan approval as major projects, provides:
"No Building Permit, Zoning Permit, or Special Permit shall be issued for the following `Major
Projects' prior to the review and approval of a Site Plan in accordance with this Section ... (5) Projects for
which the zoning ordinance requires 10 or more additional parking spaces over the zoning requirements for
the previous use."
4
)
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 328392 (GHP)
v. )
)
SARA NORTHRUP, DAVID BLOOMBERG, )
BOB RIDDLE, and ELIZABETH WROBLICKA, )
as they are members of the City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
)
DECISION
These five related cases, now before me for decision after trial and remand, concern the
proposed expansion of an existing structure, and, as subsequently modified, a proposal to
construct instead a separate additional structure, on land owned by Seawink, Ltd. ( "Seawink "),
and located at 52 Maple Street in Florence, a village within the City of Northampton. All five
cases were tried together.
In Miscellaneous Case No. 299010, filed May 13, 2004, Seawink appeals, pursuant to G.
L. c. 40A, § 17, from a decision of the Planning Board of the City of Northampton, whose
members are defendants. The Planning Board's decision, dated May 5, 2004, and filed with the
City Clerk the same day, denied Seawink's requests for a special permit and site plan review.
Seawink's application to the Planning Board, dated February 27, 2004, proposed construction of
six apartment units as an addition to the rear of the existing building, and sought a special penult
as well as site plan approval. Seawink sought to obtain a special permit under Section 5.2 of the
Zoning Ordinance of the City of Northampton ( "Ordinance "), allowing mixed -use residential
3
•
)
LORETTA GOUGEON, )
)
Plaintiff, ) HAMPSHIRE SUPERIOR COURT
) CASE NO. HSCV2006 -00120
v. )
) OTHER COURT
City of NORTHAMPTON PLANNING BOARD, ) CASE NO. 06 OTCT 000120 (GHP)
GEORGE RUSSELL, FRANCES VOLKMAN, )
JENNIFER DIERINGER, PAUL VOSS, )
FRANCIS JOHNSON, GEORGE KOHOUT, )
KEITH WILSON, and KENNETH JODRIE, as )
they are members of the City of NORTHAMPTON )
PLANNING BOARD, HUNTLEY ASSOCIATES, )
INC., SEAWINK, LTD., )
)
Defendants. )
)
)
LORETTA GOUGEON, MARK BIRD, and )
FRED WELLMAN, )
)
Plaintiffs, ) MISCELLANEOUS
) CASE NO. 327327 (GHP)
v. )
)
SEAWINK, LTD., and SARA NORTHRUP, )
DAVID BLOOMBERG, MALCOM B.E. SMITH, )
BOB RIDDLE, and ELIZABETH WROBLICKA, )
as they are members of City of NORTHAMPTON )
ZONING BOARD OF APPEALS, City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
3/9-
COMMONWEALTH OF MASSACHUSETTS
(SEAL) LAND COURT
DEPARTMENT OE THE TRIAL COURT 5 1 \0 1 °
HAMPSHIRE, ss. R ( `J
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 299010 (GHP)
v. )
)
PAUL VOSS, FRANDY JOHNSON, DAVID )
WILLENSKY, GEORGE KOHOUT, KEITH )
WILSON, PAUL DIEMAND, WILLIAM )
LETENDRE, and KENNETH JODRIE, as they are )
members of the City of NORTHAMPTON )
PLANNING BOARD, the NORTHAMPTON )
PLANNING BOARD, and the City of )
NORTHAMPTON, )
)
Defendants. )
)
)
SEAWINK, LTD., )
)
Plaintiff, ) MISCELLANEOUS
) CASE NO. 303535 (GHP)
v. )
)
SARA NORTHRUP, DAVID BLOOMBERG, )
and BOB RIDDLE, as they are Members of the )
City of NORTHAMPTON ZONING BOARD OF )
APPEALS, LORETTA GOUGEON, City of )
NORTHAMPTON ZONING BOARD OF )
APPEALS, )
)
Defendants. )
)