24B-038 (10) issuance and current validity of the statutes, regulations, Zoning By -Law, Zoning Map, and the
plans, permits, certificates and letters referred to herein or attached hereto. I also assume for the
purposes of this opinion, without having made any independent investigation of the facts, that all
of the documents and communications attached hereto or referenced herein accurately and
completely describe the factual matters set forth therein. I render no opinion on matters except
as specifically stated herein.
Facts
As I understand the facts, Colvest/Northampton, LLC (Colvest) is the owner of the
Subject Property, which is located in a Highway Business (HB) District and which contains 6.77
acres. Situated on the Subject Property is a nonresidential building containing approximately
63,000 square feet. The building was erected at least 16 years ago.
After the building was in operation, the Northampton Zoning Ordinance (NZO) was
amended in such a way as to make the structure nonconforming. Specifically, the structure does
not comply with the maximum setback requirement of the HB District of 55 feet and does not
comply with certain requirements for the location of parking spaces. See Section 6.2 of the
NZO.
Colvest now seeks to make certain improvements and repairs to the existing structure.
These include renovation of the facades, new storefront entries, and replacement of windows. A
solarium will be removed and uniform canopy overhang will be added. Also proposed are roof
repairs, HVAC and fire sprinkler replacements, and water and sewer service improvements.
The structure was last used for a flea market. Although the Subject Property has not been
used for nonresidential purposes for several years, Colvest has provided documentation to
support its claim that the locus has been actively and continuously marketed during the period of
nonuse. Section 2.0 of the NZO contains a provision defining "discontinuance" as "the cessation
of a nonconforming use unless evidence is provided that the property has been actively and
continuously marketed during such time and said marketing has contemplated the continuation of
the nonconforming use."
On September 17, 2008, the Planning Board approved a site plan for a curb cut in excess
of 24 feet. See PLN 2009 -0007. This approval contained a condition requiring Colvest to
"apply for and receive any special permits, as retail use over 10,000 square feet, and site plan
from the Planning Board for any proposed use greater than 2,000 and /or any other requirement
within the zoning for special permits and /or site plan approval." PLN 2009 -0007 was not
appealed. Subsequently, Colvest sought an amendment to the approved site plan, which was
approved by the Planning Board on April 28, 2009. See Corrected Copy of PLN 2009 -0038.
PLN 2009 -0038 contained a slightly different condition. It required Colvest to "apply for and
receive any special permits, as necessary for any retail use over 10,000 square feet, and site plan
from the Planning Board for any proposed use greater than 2,000 square feet..." (Emphasis
added) PLN 2009 -0038 was not appealed.
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February 4, 2010
Anthony Patillo
Building Commissioner
City Hall
210 Main Street
Northampton, MA 01060
RE: Zoning Opinion
Colvest/Northampton LLC
327 King Street, Northampton
Dear Mr. Patillo:
You have requested my opinion with regard to the permitting of certain improvements at
the above - referenced property (the Subject Property).
In order to assist me, you have provided me with the following documents:
1. Memorandum dated January 4, 2010.
2. Zoning Permit Application of Colvest/Northampton, LLC.
3. Building Commissioner's draft decision, dated December 14, 2009.
4. Planning - Decision, PLN #2009 -0007
5. Planning - Decision, PLN #2009 -0038
6. Correspondence of Atty. Mark Tanner to Building Commissioner, dated January 19, 2010
7. Corrected Copy of Planning - Decision, PLN #2009 -0038
I have also reviewed the Northampton Zoning Ordinance on -line at http: / /ecode360.com.
I assume for the purpose of this opinion the authenticity of all signatures and the due
-1-
If you have any questions or comments, please let me know. Thank you for your
consideration.
Very truly yours,
!
Mark Bobrow i
-6-
841, 844 -45 (1988).
I note, in this regard, that Colvest must seek such special permit only if it proposes
"substantial improvement" of the Subject Property. Substantial improvement means
Any repair, reconstruction, or improvement of a structure within a five -year period which
either increases the building area or the original structure by 15% or more, or the cost of
repair, reconstruction, or improvement which equals or exceeds 15% of the assessed
value of the original structure, either before the improvement is started or, if the structure
has been damaged and is being restored, before the damage occurred.
I have not been provided with any information to assess whether Colvest will make "substantial
improvements" to the Subject Property. If no substantial improvements are made, I conclude, for
the reasons set forth above, that a special permit is not "necessary" for the project. If this
threshold is triggered, a special permit is required.
7. Any comments /suggestions on the Building Commissioner's draft decision.
In my opinion, the Building Commisioner's draft decision is generally consistent with my
opinion.
8. Any other legal considerations you think the City should consider.
It is not within the jurisdiction of the Building Commissioner to decide whether the
Planning Board's condition requiring site plan approval was appropriate or not. As set forth
above, since Colvest did not appeal either Planning Board decision, it must abide by its terms.
Colvest has four options, in my opinion. Colvest may:
1. wait for the lapse of the September 17, 2008 site plan approval (in two years) and
recommence the permitting process consistent with this opinion.
2. renounce the September 17, 2008 site plan approval, settle for a smaller curb cut, and
seek remaining permits consistent with this opinion. In this regard, I am informed that
the site plan approval has not been recorded. It must be recorded to "take effect." See
Section 11.4 of the NZO and G.L. c. 40A, s. 11.
3. apply to the Planning board for a modification of the September 17, 2008 decision,
seeking to remove the requirement of further site plan approval.
4. comply with the decision of the Planning Board dated September 17, 2008 and seek other
permits consistent with this opinion.
-5-
4. If office tenants were added at a later date, would this constitute a change in use and
which zoning procedures would apply?
Same as #3, above. The structure is nonconforming. Any "alteration .... to provide for its
use for a substantially different purpose" requires a new round of findings.
5. How does the issue of improving the building beyond 15% of the assessed value in
order to achieve tenant fit up affect this case?
Section 9.0 does not state any exemption for improvements of less than 15% of value.
Instead, it is triggered by "change or substantial extension ... or alteration of a structure .... to
provide for its use for a substantially different purpose." Nor does the definition of "substantial
improvement" refer or relate to any provision of section 9.0 of the NZO. I view the term as
entirely unrelated to the application to alter the nonconforming structure.
However, see my response to Question 6, below.
6. If the use is considered a pre- existing non - conforming use, how does the Planning
Board's condition on the Site Plan Approval affect the status of the property?
Section 11.4 states that the requirements of site plan approval "are superimposed over any
other requirements ..." of the NZO. Therefore, if site plan is otherwise triggered by any provision
of Section 11.2 (intermediate project) or Section 11.3 (major project), the Planning Board's curb
cut decision merely reiterated the obvious. On close examination of the standards in Sections
11.2 and 11.3, I am unable to detect any threshold that will be crossed by the improvements to
the building.
However, in PLN 2009 -0007, the Planning Board approved a site plan for a curb cut in
excess of 24 feet. This approval contained a condition requiring Colvest to "apply for and
receive .... site plan [approval] from the Planning Board for any proposed use greater than 2,000
square feet ...." PLN 2009 -0007 was not appealed. Subsequently, Colvest sought an
amendment to the approved site plan, which was approved by the Planning Board on April 28,
2009. See PLN 2009 -0038. PLN 2009 -0038 contains the same provision. PLN 2009 -0038 was
not appealed.
Thus, Colvest must comply with the Planning Board mandate to obtain site plan approval
for the building(s). Sergi v. Planning Board of Kingston, 60 Mass. App. Ct. 918 (2004)(Where
original approval contained conditions, "[t]his is so even if the original decision of the planning
board was invalid. "); Campanelli, Inc. v. Planning Bd. of Ipswich, 358 Mass. 798 (1970)( "the
owner's acceptance of [the earlier unappealed decision] involved the owner's acquiescence in the
board's failure to approve the plan unconditionally (even if the conditions imposed in the
agreement could be said not to have been authorized by the Subdivision Control Law. ") Town of
Stoneham v. Savelo, 341 Mass. 456 (1960); Young v. Planning Board of Chilmark, 402 Mass.
-4-
Board for any proposed use greater than 2,000 square feet..." (Emphasis added) PLN 2009-
0038 was not appealed.
Opinion
You have asked me eight (8) specific questions, which I address in order below:
1. Is all or a portion of the existing building a preexisting nonconforming retail use
and eligible for a change with a finding from the Zoning Board of Appeals?
The existing structure is clearly a prior lawful nonconforming structure, because it
predates the requirements of Section 6.2 of the NZO. Therefore, any "change or substantial
extension ... or alteration of a structure .... to provide for its use for a substantially different
purpose" is subject to the provisions of the NZO. See Section 9.2.A.
2. Have abandonment and discontinuance thresholds been met on the existing
building?
You did not provide me with specific information as to when the flea market ceased to
operate. G.L. c. 40A, s. 6 states that a "zoning ordinance or by -law may define and regulate
nonconforming uses and structures abandoned or not used for a period of two years or more."
Non -use has been strictly interpreted by the appellate courts. Thus, in North End Boulevard
Corp. v. Zall, App. Ct. No.: 2007 -P -1389 (Summary Disposition 2009), the Appeals Court ruled
that even when the proponent had maintained water, sewer, and electrical service to the premises
and obtained a temporary license to continue to operate a nonconforming food court, the use had
been discontinued.
However, the NZO has an unusual definition for the term "discontinuance," cited above.
This raises a question of proof. If the Zoning Board of Appeals (ZBA) is satisfied that the
Subject Property was "actively and continuously marketed during such time and said marketing
has contemplated the continuation of the nonconforming use" then a finding to that effect would
be appropriate. I do not have enough information to make or offer an opinion at this time.
3. Which sections of the Northampton Zoning Ordinance relative to the retail use in
the Highway Business zone apply given the history and proposed use /renovations of
the property?
The proposed improvements to the structure on the Subject Property trigger the need for
finding pursuant to Section 9.3.A.8, due to the "proposed change of use" from a nonconforming
flea market to the restaurant and retail uses proposed now. As set forth in Section 9.2, this
constitutes "alteration of a structure .... to provide for its use for a substantially different
purpose."
-3-
I assume for the purpose of this opinion the authenticity of all signatures and the due
issuance and current validity of the statutes, regulations, Zoning By -Law, Zoning Map, and the
plans, permits, certificates and letters referred to herein or attached hereto. I also assume for the
purposes of this opinion, without having made any independent investigation of the facts, that all
of the documents and communications attached hereto or referenced herein accurately and
completely describe the factual matters set forth therein. I render no opinion on matters except as
specifically stated herein.
Facts
As I understand the facts, Colvest/Northampton, LLC (Colvest) is the owner of the
Subject Property, which is located in a Highway Business (HB) District and which contains 6.77
acres. Situated on the Subject Property is a nonresidential building containing approximately
63,000 square feet. The building was erected at least 16 years ago.
After the building was in operation, the Northampton Zoning Ordinance (NZO) was
amended in such a way as to make the structure nonconforming. Specifically, the structure does
not comply with the maximum setback requirement of the HB District of 55 feet and does not
comply with certain requirements for the location of parking spaces. See Section 6.2 of the
NZO.
Colvest now seeks to make certain improvements and repairs to the existing structure.
These include renovation of the facades, new storefront entries, and replacement of windows. A
solarium will be removed and uniform canopy overhang will be added. Also proposed are roof
repairs, HVAC and fire sprinkler replacements, and water and sewer service improvements.
The structure was last used for a flea market. Although the Subject Property has not been
used for nonresidential purposes for several years, Colvest has provided documentation to
support its claim that the locus has been actively and continuously marketed during the period of
nonuse. Section 2.0 of the NZO contains a provision defining "discontinuance" as "the cessation
of a nonconforming use unless evidence is provided that the property has been actively and
continuously marketed during such time and said marketing has contemplated the continuation of
the nonconforming use."
On September 17, 2008, the Planning Board approved a site plan for a curb cut in excess
of 24 feet. See PLN 2009 -0007. This approval contained a condition requiring Colvest to "apply
for and receive any special permits, as retail use over 10,000 square feet, and site plan from the -
Planning Board for any proposed use greater than 2,000 and/or any other requirement within the
zoning for special permits and /or site plan approval." PLN 2009 -0007 was not appealed.
Subsequently, Colvest sought an amendment to the approved site plan, which was approved by
the Planning Board on April 28, 2009. See Corrected Copy of PLN 2009 -0038. PLN 2009 -0038
contained a slightly different condition. It required Colvest to "apply for and receive any special
permits, as necessary for any retail use over 10,000 square feet, and site plan from the Planning
-2-
s;e
BLATMAN, BOBROWSKI & MEAD LLC
ATTORNEYS AT LAW
9 Damonmill Square, Suite 4A4
Concord, MA 01742,
Phone: 978- 371 -3930 y ,
Fax: 978- 371 -3828
MARK BOBROWSKI EWBURY PORT OFFICE
mark @bbmatlaw.com 30 Green Street
Newburyport, MA 01950
Phone: 978 -463 -7700
Fax: 978-463-7747
ran — 8, 2010
February 4, 2010
Anthony Patillo
Building Commissioner
City Hall
210 Main Street
Northampton, MA 01060
RE: Zoning Opinion
Colvest/Northampton LLC
327 King Street, Northampton
Dear Mr. Patillo:
You have requested my opinion with regard to the permitting of certain improvements at
the above - referenced property (the Subject Property).
In order to assist me, you have provided me with the following documents:
1. Memorandum dated January 4, 2010.
2. Zoning Permit Application of Colvest/Northampton, LLC.
3. Building Commissioner's draft decision, dated December 14, 2009.
4. Planning - Decision, PLN #2009 -0007
5. Planning - Decision, PLN #2009 -0038
6. Correspondence of Atty. Mark Tanner to Building Commissioner, dated January 19, 2010
7. Corrected Copy of Planning - Decision, PLN #2009 -0038
I have also reviewed the Northampton Zoning Ordinance on -line at http: / /ecode360.com.
-1-