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25C-130 (2) differently, the Zoning Board's exercise of discretion is entitled to stand. ORDER The decision of the Zoning Board of Appeals is affirmed. �e YZ/, ,Tahn F. rphy, Jr. ,7lustice of the Superior Court Entered: August 25, 1994 6 Board of Appeals' exercise of that discretion in the case at bar was not based on legally untenable grounds, nor was the decision arbitrary or capricious. 9 . Section 11. 11 of the City Zoning Ordinance. (Exhibits No. 9 & 10) , sets forth the criteria for Home Occupation Special Permits. This section requires that the occupation must be " . . . .clearly incidental and secondary to the use. . . for residential/dwelling purposes" . The Zoning Board of Appeals was clearly justified in questioning whether plaintiffs would meet this requirement even if the permit was granted. Section 2 of the Ordinance, (Exhibit No. 7 & 10) , does not specifically exclude the office of a psychoanalyst. However, the discretionary aspect of the Zoning Board of Appeals' authority regarding Special Permit justifies the ruling in the case at bar. Section 8 . 1. 3 of the Ordinance, (Exhibit No. 10) , requires 4 off-street parking places on site. Section 2 . 1 define's a space as 8-1/2 feet wide, 18 feet long with a maneuvering area of 18 feet directly behind the space. The requirement could not possibly be complied with by plaintiffs. The Zoning Board of Appeals made findings that the requested use of a psychotherapy home occupation would be detrimental to the neighborhood for which the use was requested. Those findings are a sufficient basis to require that, even if another board or a judge reviewing the decision could find 5 with her husband was going through a bad period and that both felt time apart would be helpful . It was her intention that her private practice would continue to be part-time and she would continue as an employee of Tri-County Youth. Granting of the permit would allow her to reduce her rental expense she now pays for her office on Center Street. 6. The Senior Planner for the City of Northampton inspected the premises on Elizabeth Street for the Zoning Board of Appeals. It was her opinion that the property would lose its "grandfather" rights if the permit was granted, and that the property would not conform to the off-street parking requirement which requires space for 4 motor vehicles on site for a two family dwelling. 7 . The courts view of the area disclosed that Elizabeth Street is a well maintained area in an older section of the city. The houses are mostly multi-family and the street intersects with Route 9, the main highway between Amherst and Northampton. The lot has 60 foot frontage on the street and is approximately 57 feet deep. (Exhibit No. 13) . The street is narrow and it would be impossible to provide 4 or 5 off-street parking spaces on site. (Exhibits No. 11 and 12A-D) . There is no side yard to allow expansion. The 3 motor vehicles shown in Exhibit 11 are almost encroaching on the sidewalk area. RULINGS 8. The Zoning Board of Appeals has discretionary power to determine whether a special permit will be granted. The Zoning 4 s during the week on working days and would return to her home in Plainfield on weekends. The plaintiff John Fisher would continue to live in their Plainfield home which they owned jointly, and which they intended to retain. 4 . Plaintiff Sebern Fisher is a psychologists presently employed in the Northampton office of the Tri-County Youth Program on a 25 hour per week basis. She also has an office at 16 Center Street in Northampton where she conducts her part-time psychotherapy practice. Mrs. Fisher commutes the 30 miles between Plainfield and Northampton each day she works. 5. In October of 1993 subsequent to the Zoning Board of Appeals' denial of the application and pending hearing in the Superior Court, the plaintiffs went forward with the purchase of the residence at 32-34 Elizabeth Street. Both apartments are now rented to third parties. The plaintiffs continue to reside in Plainfield. Mrs. Fisher testified that, if the special permit is granted, she intends to modify the second floor apartment into a combination office and residence. It would be her intention to occupy that apartment during the week, and she and her husband would retain the Plainfield residence where her husband would continue to live full-time. Mrs. Fisher claims to have spur problems in her neck that is putting pressure on her spine. If the permit was granted she could avoid her daily commute, and thus reduce her chances of a motor vehicle accident which might aggravate her condition. She also testified that her relationship 3 at in Northampton. The agreement was conditioned upon plaintiff, Sebern Fisher, being allowed to operate a part-time home occupation for the practice of psychotherapy in one of the apartments. On July 7 , 1993 the plaintiff filed an application for a permit with the building inspector which was denied on the basis that a special permit and/or site plan was required. (Exhibit No. 1) . On July 15 , 1993 the plaintiff filed an application for a special permit and site plan requirement waiver. (Exhibit No. 2) . In August of 1993 the Planning Board granted the site plan waiver. After a hearing, the Zoning Board of Appeals, on September 22 , 1993 , voted 2 to 1 against granting the special permit. (Exhibit No. 6) . 2 . In denying the special permit the Zoning Board of Appeals found that the practice of psychotherapy is not complementary to a residential neighborhood, would have the potential to create additional traffic and increase vehicles in the neighborhood, that the proposed use was similar to a medical office which was not permitted in a residential district, and that the proposed plan did not meet the requirement of the Zoning Ordinance for off-street parking. (Exhibit No. 6) . 3 . The Zoning Board of Appeals considered the issue of whether the applicants were eligible to apply for the permit since neither were residenT15 of Northampton, nor present owners or occupants of the house in question. (Exhibit No. 6 - Attachment A) . At the hearing before the Zoning Board of Appeals the plaintiffs testified that Sebern Fisher would be occupying the home 2. COMMONWEALTH OF MASSACHUSETTS A"J"i 2 6 A�pshYre,AIAJI Superior Court _ A ���` Civil Action No. 93-332 CLERK MAGtSTP SEBERN FISHER and H. JOHN FISHER, ] HAMPSHIRE SS Plaintiffs ] SUPERIOR COURT ] FILED V80 ] ] AUG 2:5 1994 NORTHAMPTON ZONING BOARD OF ] APPEALS, Peter Leband, Alex ] Ghiselin and M. Sanford Weil, Jr. ] ��� Individual members thereof, ] Defendants 1 CLERK/MAGISTRATE FINDINGS, RULINGS AND- ORDER This is an appeal under G. L. c. 40A, §17 , from the decision of the City of Northampton's Zoning Board of Appeals' denial of plaintiffs' application for a special permit to conduct a home occupation in a two family dwelling at 32-34 Elizabeth Street in Northampton, Hampshire County, Massachusetts . The plaintiffs are husband and wife and reside at 268 West Street, Plainfield, Massachusetts. The individual defendants are members of the Northampton Zoning Board of Appeals. The case was tried jury waived at the June, 1994 session of the Hampshire County Superior Court. Based upon the credible evidence, the exhibits, a view taken by the court, and all of the reasonable inferences drawn therefrom, I find as follows: 1. Sometime prior to July 1993 , the plaintiffs entered into a purchase and sale agreement with the owner of the two family home 93 332 COMMONWEALTH OF MASSACHUSETTS AUG 2 6 A Vie, ss. Superior Court t s ATTEST •,f Civil Action No. 93-3,32 r�:' CXSRK H. JOHN FISHE FISHER, Plaintiffs ] 2 6 VS. ] NORTHAMPTON ZONING BOARD OF ] APPEALS, Peter Leband, Alex Ghiselin and M. Sanford Weil, Jr. , ] Individual members thereof, J Defendants 1 JUDGMENT ON FINDINGS BY THE COURT This action came on for hearing before the court, Murphy, J. presiding, and the issues having been duly tried and Findings having been duly rendered, pursuant to said Findings, it is ORDERED and ADJUDGED as follows: 1. The decision of the Zoning Board of Appeals of the City of Northampton did not exceed its authority and no modification of it is required. 2 . The Clerk shall within 30 days of entry of this judgment send attested copies thereof to the Zoning Board of Appeals, Clerk, and Building Inspector of the City of Northampton. Dated at Northampton, Massachusetts this 25th day of August, 1994 . FORM OF JUDGMENT APPROVED: • By . i0 fin F. Murphy, Ar. Cle agist to ice of the uperior Court A tr e cop .Attes Ci y Clerk .City of Northampton