25-015 (59) LL
Finally, it is my opinion that the aerial photography and
parachute instruction/jumping are activities which are
intrinsically part of the operation of an airport and do not
constitute an expansion of the non-conforming use.
In summary, it is my opinion that the first three activities
mentioned in the complaint do not violate the zoning ordinance at
this time. (Please bear in mind, however, that changes in the
aviation activities at the airport, depending on the nature of
those particular activities, could constitute a violation in the
future. ) The fourth and fifth activities are in violation of the
ordinance. And, while the increase in the number of flights or
of aircraft based at the airport is not an impermissible
expansion of the non-conforming use, any major physical
alterations to the site will be such an expansion. This would
include the lengthening or widening of the runway, the
construction of additional runways, or the erection of new
buildings. Any of these activities would require a finding by
the Zoning Board of Appeals.
Very truly yours,
Kathleen G. Fallon
cc: Mayor David Musante
Councilor Leonard Budgar
Lawrence B. Smith
Airport 5
existing non-conforming use. And, finally, the uses are
"different in kind" in their effect on the neighborhood.
The status of the other activities which are the subject of the
complaint is more complicated. Clearly an airport has been on
that site since 1949 . There is no doubt that operation of an
airport for the use of small aircraft and activities which are an
intrinsic part of that operation constitute a valid pre-existing
non-conforming use. The issue is whether the non-conforming use
has been illegally extended by (1) the increase in the number of
flights and the number of airplanes based at the airport, and (2)
the use of the airport facilities for aerial photography and
parachute instruction/jumping.
Under the three part test set forth in the Bridgewater case cited
above, the increase in the number of flights or of planes based
at the airport does not constitute an illegal expansion of the
non-conforming use. The current use does reflect the "nature and
purpose" of the non-conforming use, i.e. the operation of an
airport for the use of small private aircraft. The first
criterion of the test is met.
Although the non-conforming use is different in degree than it
was in 1949 or even in 1975, it is not significantly different in
quality or character. If the airport had become a regularly
scheduled destination for a commercial airline or now
accommodated jet airplanes or large propeller-driven airplanes
rather than small private planes, clearly a change in the quality
and/or character of the non-conforming use would have occurred.
Therefore, an impermissible expansion of the use also would have
occurred under the Bridgewater test criteria. However, it is my
opinion that an increase in the number of flights of small
private planes to and from the airport or in the number of small
planes based at the airport does not constitute an expansion of
the use. Massachusetts case law has clearly established that an
increase in the degree of a use is not the significant factor in
determining if there has been an expansion of that use. (See
Bridgewater v. Chuckran, supra, and Powers v. Building Inspector
of Barnstable 363 Mass 648 (1973) ) .
The third part of the Bridgewater test examines whether the use
is "different in kind in its effect on the neighborhood." This
is obviously a far more subjective standard than are the other
two. It should not be confused with the effect that an increase
in the degree of a use will naturally have on a neighborhood. The
greater number of flights will obviously involve an increase in
noise in the area adjacent to the airport. However, no evidence
has been presented that demonstrates a discernable effect on the
neighborhood which is different in kind and can be traced
directly to increased airport operations.
Airport 4
i
Building Inspector. From 1958 to 1975, such an expansion was
confined to the property on which the business was located in
1958, still subject to the approval of the Building Inspector.
Between 1975 and 1977 it appears a non-conforming principal or
accessory use could expand by right on the property on which it
was located in 1975. In 1978 such expansion was made subject to
a finding by the permit granting authority.
Applying these ordinances to the equipment auction confirms the
Illegality , of that use.. The first auction of ich we have
Zicle,,p4jes ice occurred in 1975. under the then-current zoning, Motor
were not allowed in that zoning district. (In fact,
such sales were not allowed at least as far back as 1959) . At
that time a principal non-conforming use or a use accessory
thereto were permitted to expand on the same lot. The principal
use on the subject lot was the operation of an airport for the
use of small private aircraft. I ;pannot, see that a gonstruCtion
equ 'pinen auotion is, in .: rh accessory use to that
' pal use. Therefore, the .auctions could not be -held by
r ,, Even if the first auction was held prior to 1975, the
"Applicable ordinances back to 1949 allowed a non-conforming
"business" to expand with permission of the Building Inspector.
The "business" on the subject site from 1949 through 1975 was an
airport. Only airport operations and uses accessory thereto
could have expanded under the ordinances in effect in these
years.
A similar line of reasoning can be applied to the automobile
storage.;use. However, the first occurrence of this use seems to
be I' recent. Within the past year, Mr. Guisto, one of the
owners of the airport, asked if he Could store automobiles on the
site. He was told that a finding b" the Zoning Board of Appeals',
would be required before he could do so. Nq such finding has
.q
ver been requested. This use is clearly in "I'll'1tion' of they
Zoning ordinance.
In addition, Massachusetts case law has established for general
use a three part test for determining whether a non-conforming
use has been improperly changed, altered, or extended. As set
forth in Bridgewater v. Chuckran 351 Mass 20 (1966) , that test
is as follows: (1) whether the use reflects the "nature and
purtr of the Use prevailing when the zoning by:-law: took
eff+ �t; (2) whether there is a differences 4,in the ' 'quality or
character, as well as the degree., of use;".1 (3) whether, the
current use is "different in kind in its effect on the
neighborhood" .
Applying this test to the construction equipment auctions and the
automobile storage, both uses are obviously improper. They do
not reflect the "nature and purpose" of the non-conforming use
(the operation of an airport) . There is certainly a difference
in the character of the use, not just in the degree of the.
Airport 3
The complaint cites the following activities as alleged
expansions of the non-conforming use:
1) general aviation operations
2) aerial photography
3) parachute instruction and jumping
4 Qpnstruct o�n ecui�ment auctions
5) "omobile s
The complaint also lists "noise" and "safety" as subjects of the
complaint. I do not think the safety of the aviation operation
of the airport is a matter over which the Building Inspector has
any control. Nor would noise from the airport be under his
jurisdiction unless it were related to a zoning violation.
As to the other five activities, it is my opinion that the
equipment auctions and automobile storage are clearly not
permitted without action by the Zoning Board of Appeals. From
1949 to 1957, the zoning ordinance provided that "any business in
operation at the time this Ordinance is passed may expand with
the permission of the Building Inspector" (C. 44 , s. 8) . From
1958 to 1975, the qualification that the expansion must be on the
same lot was included as part of that ordinance. In 1975, the
ordinance was revised to read as follows:
"l. Any nonconforming use, except agricultural,
horticultural, or floricultural, or any open space on a
lot outside a structure, or of a lot occupied by a
structure, shall not be extended, except that a
nonconforming principal or accessory use may be
extended within the limits of the lot existing as of
the date of adoption of this Ordinance and shall be in
accordance with the dimensional and density regulations
of Article VI .
2 . Any nonconforming principal use of a structure
shall not be extended. "
Finally in 1978 the ordinance was amended to read as follows:
"Pre-existing nonconforming structures or uses may be
extended or altered provided that no such extension or
alteration shall be permitted unless there is a finding
by the permit granting authority or by the special
permit granting authority that such change, extension or
alteration shall not be substantially more detrimental
than the existing nonconforming use to the
neighborhood. . . "
Reading these ordinances together, it would appear that from 1949
to 1957, a non-conforming business could expand onto its original
lot or any after acquired property with the permission of the
Airport 2
e '
ti
u 131991
DEPT OF BUILDING INSPECTIONS
,_-NORTHAMPTON MA 01060
December 1, 1987
William A. Nimohay,
Building Inspector
Municipal Building 01060
Northampton, MA.
Re: Zoning Complaint--Northampton Airport
Dear Mr. Nimohay. with you against the
Taint filed to its merits. In
have referred the comp as
you Airport to me for an opinion
Northampton
response, may I submit the following' a pre-existing, 'ton- ,;
Airport is presently ricer to the g49
The Northampton Airp From 1949
The airport was establisheod dinance.
conforming use' rehensive zoning ed and their
enactment of the of buildings on the site has °that period were
to 1978 , the type ordinances during use on it.,
number increased. The zoning
expansion of a non-cenformin ear to have
quite liberal as Therefore, the site alterations appear
the pre-
existing site. T they were done in of an airport.
use, i.e. , the operation
been proper use has, since 1949 ,
existing, a 9 conforming non-conforming
a Chan e in a Board of Appeals.
However, the Zoning
required action by by the
ordinance has required a finding expansion
the Zoning change, alteration, or exp the
Since 1978 , peals for any then, whether
Zoning Board of App use. The question is,
non-conforming subject of the complaint constitute a
of a use
activities which are the subs
change,
alteration, or expansion of the non-conforming
v
��KtV►Afp O ��
Gritty of 1 I
�IA88 AC�r 118 Ctt8
�-, DEPARTMENT OF BUILDING INSPECTIONS
INSPECTOR 212 Main Street ' Municipal Building
Northampton, Mass. 01060
Frank X . Sienkiewicz
July 19 , 1991
Northampton Airport
152 Cross Path Rd .
Northampton , Mass . 01060
To whom it may concern :
We have been informed from the City of Northampton ' s Legal Dept ,
that the automobile storage and construction equipment auctions and
anything else that was stated in the decision issued to our DepartL.ment.
December 1 , 1987 by Kathleen Fallon , see enclosed .
The airport must still abide by this decision and if there any further
question pertaining to this matter please call me at 586-6950 ext . 240 .
I am allowing a ten ( 10 ) day time period for the removal of all vehicle:
being stored on the property at that time I will do an on-site inspection
to be sure they have been removed . If this is something you would like
to do in the future , a finding must be granted by the Zoning Board of i!,ppeal �
Sincerely ,
Frank X . Sienki cz
Inspector uildings
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