25C-130 (3) a
criteria for a home occupation. Ghiselin said he would be willing
to vote in favor of the application with the following conditions:
1. At least four parking spaces be made available with parking
paved and spaces delineated.
2. That the person practicing the home occupation be a registered
voter of the City of Northampton, be able to claim the home
for tax purposes as their principal residence.
Dr. Laband read the criteria under §11.11 which stated that "It
must be clearly incidental and secondary to the use of the building
or property for residential/dwelling purposes." Laband noted that
the hearing had brought out the fact that the applicant was
planning to buy the property for the purpose of having an office in
the home in which to have a private psycho-therapy practice.
Laband noted that only secondarily and incidentally would the house
become a residence for the applicant. The hearing also showed that
the applicants are residents of Plainfield and that one of the
couple would live in this house for a certain number of days per
week but would return to the Plainfield house on weekends. The
requirement of a home occupation is that "it must be conducted by
the principal practitioner who occupies the main building as
his/her bonafide residence. . . ." Laband did not think the
applicant met the criteria as a bonafide resident. He noted that
the situation with the parking is that the street is narrow, with
parking on one side only, and the building is a two family dwelling
which would require four parking spaces. Laband said he had driven
by the house and could not determine how four parking spaces could
be fit onto the property. Laband also noted that, according to the
memo from Kathleen Fallon, the definition of doctor is getting hard
to define. Laband said he thought the term "doctor" was usually
associated with an M.D. , but also noted that the applicant would be
seeing patients who are being treated, and some who are charged
through insurance coverage. Laband said that for the reasons he
already mentioned, he would vote to deny the request for Special
Permit.
M. Sanford Weil, Jr. moved to approve the Minutes of the Zoning
Board of Appeals meeting of September 13, 1993. Alex Ghiselin
seconded the motion which passed unanimously 3:0.
Alex Ghiselin moved to grant the requested Special Permit for a
home occupation for H. John & Sebern Fisher at 32-34 Elizabeth
Street. M. Sanford Weil seconded the motion. The vote was 1 in
favor and 2 against, therefore the motion did not carry.
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resident.
4. Some neighbors have indicated their concern that the
additional parking which would be generated would exacerbate
an already heavy traffic. The street is occupied by students
who rent and who fill the parking to a large degree. This
would be even more difficult, since the appellant would be
conducting her business to a large degree in the evening,
between 7 p.m. and 11 p.m.
5. I am not convinced that the practice of Psychotherapy is an
appropriate Home Occupation. I also question whether someone
who is not already a resident can qualify for Home Occupation
status. Finally, I am concerned about the parking situation.
Therefore unless I am persuaded otherwise, I am prepared to
deny.
Weil further stated that the Ordinance requires that the applicant
must be a permanent resident, which should include tax status and
voter registration. The intent of the Ordinance is for someone who
is already a resident to have the ability to apply for a Home
Occupation. Weil noted that some of the neighbors have already
indicated their concerns about increased traffic as a result of the
proposed home occupation. There are currently a lot of students
who live on the street, and whose cars would be parked on the
street in the evening. The proposed psycho-therapy business would
have most of the clients coming to the home in the evening between
the hours of 7: 00 - 10: 00 P.M. The applicant's house is a two-
family house which means that any change of use would require that
parking conform to the ordinance requirements which means that four
parking spaces are required. There are three parking spaces at the
house now, and there does not seem to be room to install any more
parking spaces for client parking. Weil said he was not convinced
that the practice of psycho-therapy is a proper home occupation.
Weil said he was concerned about the parking situation and was
prepared to vote to deny the request for Home Occupation.
Alex Ghiselin said he had many of the same concerns as did Mr. Weil
but he had derived a different conclusion. Ghiselin said he
thought that the medical profession merged into the service areas
such as massage and physical therapy, which the ZBA had allowed as
home occupations. Ghiselin said he thought a psycho-therapist who
saw clients one at a time would be an acceptable home occupation.
Ghiselin said that Mr. Weil's argument about the applicant not
being a resident of Northampton was a compelling one, and suggested
that if the request for home occupation were approved, a condition
be attached to approval that would require the applicant to be a
registered voter of the City of Northampton. Ghiselin said he had
visited the site and noticed that there were a lot of cars in the
area, and noted that the bulk of the cars parked would be at night
during the same hours in which therapy sessions would be conducted.
Ghiselin said that he would suggest a condition that the applicant
not be allowed to conduct any psycho-therapy session after 7 : 00
p.m. Ghiselin said he thought the applicant met most of the other
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ZBA Minutes - September 22, 1993 meeting
Dr. Laband opened the Zoning Board of Appeals meeting at 7:00 p.m. ,
and said that the purpose of the first agenda item was to reach a
decision on the request of H. John and Sebern Fisher for a Special
Permit under §11. 11, page 11-31 for a home occupation for a psycho-
therapy office at 32-34 Elizabeth Street. Sitting on the hearing
are Chairman Dr. Peter Laband, Alex Ghiselin and M. Sanford Weil,
Jr.
Dr. Laband noted the the ZBA had received an opinion from City
Solicitor, Kathleen G. Fallon, dated September 13, 1993 in which
she outlined the ordinance criteria. Fallon remarked on the fact
that a medical doctor's office is expressly excluded as a home
occupation and suggested that a psycho-therapist may also be a
medical doctor, but also noted that a psycho-therapist may have a
non-medical degree or other training which does not carry the title
of "doctor. " Fallon's opinion was that the educational status of
the psychotherapist was not relevant. Fallon further stated that
her opinion was that the individual psycho-therapist's type of
practice should determine eligibility for a home occupation. She
suggested that the ZBA make decisions on a case by case base. The
ZBA should decide whether the activity of the home occupation will
"cause any significant outward manifestation which will impact the
neighborhood. " If the ZBA finds that the home occupation will have
an impact, they should then deny the application.
M. Sanford Weil, Jr. stated in his decision that:
1. The Legal Department states that no previous consideration was
given to the profession of Psychotherapy in relation to the
definition of Home Occupation. However, in a subsequent
conversation the City Solicitor said that just because the
classification is not listed as a disallowed profession that
it automatically becomes allowed. She also said that the
interpretation of the Home Occupation definition is up to this
Board.
2 . A Psychiatrist would not be allowed to practice as a Home
Occupation. The City Solicitor asks the question, "would
prohibition against doctor's offices preclude a
Psychotherapist who is a M.D. , but not one who has a MS in
social work?" She said that this was up to the ZBA to decide.
3 . The ordinance requires that the appellant must be a permanent
resident of the structure in which the Home Occupation takes
place. This would have to include voter registration and
official tax status. Currently she is not a Resident of
Northampton but commutes from Plainfield, where she resides in
order to practice her profession. The intent of the
definition was that the person would already be residing in
the house and would ask for a Home Occupation status. I don't
think one can request this status until one is already a
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ATTACHMENT A
DENIAL OF A HOME OCCUPATION SPECIAL PERMIT FOR:
H. John & Sebern Fisher
In Denying the Special Permit, the Zoning Board of Appeals found
that the requested use did not meet all special regulations set
forth in the Zoning Ordinance, specifically Section 11.11 - Home
occupation special Permit Criteria.
In making this decision, the Zoning Board of Appeals found:
1. The use is not clearly incidental and secondary to the use
of the building or property for residential dwelling
purposes because the applicant does not currently own or
reside at the property and the Zoning Ordinance states that
"it must be conducted by the principal practitioner who
occupies the main building as his/her bonafide residence. . ."
2 . The Board questioned whether the work will be conducted by
the principal practitioner who occupies the main building as
his/her bonafide residence because both of the applicants
currently reside in another community and do not intend to
sell that residence. Additionally the Board found that one
of the applicants stated that he will continue to reside at
the other residence.
3 . The Board found that, according to the memo from City
Solicitor, Kathleen Fallon, the definition of a doctor was
getting harder to define. The Board found that the term
"doctor" was usually associated with an M.D. but that the
applicant would be seeing patients who are being treated,
and some who are charged through insurance coverage in the
same manner that a doctor conducts business. Therefore, the
Board found that a psycho-therapy practice is so similar to
a doctor's practice that it should not be allowed in a
residential area just as a medical doctor's practice would
not be allowed.
Based on the above mentioned reasons, no Special Permit was
issued to H. John & Sebern Fisher for a Home Occupation at
32-34 Elizabeth Street.
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ZONING BOARD OF APPEALS DECISION
DECISION DATED: September 22 , 1993
DECISION FILED WITH CITY CLERK: October 4 , 1993
Dr. Peter Laband
M. Sanford veil , Jr,
CX- C Lt.e-, O
Alex Ghiselin
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* The location and description of all stormwater drainage
facilities, public and private utilities, sewage
disposal facilities and water supply, because no
structural changes to the building or site were being
proposed;
* The existing and proposed landscaping, trees and
plantings, stone walls, buffers and fencing because no
changes were being proposed to the site or the
building;
* The location dimensions, height, color, and
illumination of existing and proposed signs, because no
signs exist and no signs were proposed;
* Provisions for refuse removal with facilities for
screening of refuse when appropriate, because this use
would not generate enough refuse to warrant a large
refuse container; and
* An erosion plan, because this project does not qualify
as a major project.
Pursuant to Massachusetts General Laws (MGL) , Chapter 40A,
Section 11, no Special Permit, or any extension, modification or
renewal thereof, shall take effect until a copy of the decision
bearing the certification of the City Clerk that twenty days have
elapsed after the decision has been filed, or if such an appeal
has been filed that it has been dismissed or denied, is recorded
in the Hampshire County registry of Deeds or Land Court, as
applicable and indexed under the name of the owner of record or
is recorded and noted on the owner's certificate of title. The
fee for such recording or registering shall be paid by the owner
or applicant. It is the owner or applicant's responsibility to
pick up the certified decision from the City Clerk and record it
at the Registry of Deeds.
The Northampton Zoning Board of Appeals hereby certifies that a
Special Permit has been Denied and that copies of this decision
and all plans referred to in it have been filed with the Planning
Board and the City Clerk.
Pursuant to Massachusetts General Laws, Chapter 40A, Section 15,
notice is hereby given that this decision is filed with the
Northampton City Clerk on the date below.
If anyone wishes to appeal this action, an appeal must be filed
pursuant to MGL Chapter 40A, Section 17, with the Hampshire
County Superior Court and notice of said appeal filed with the
City Clerk within twenty days (20) of the date of that this
decision was filed with the City Clerk.
-3-
3 . The requested use will create undue traffic congestion
because the two-family residence requires four parking
spaces and only three were provided on site. Additionally,
the parking area shown on the submitted site plan is not
adequate and is substandard to the parking space
requirements, of the Zoning Ordinance. Under the Ordinance,
a parking space is defined as 8-1/2' x 181 . The area
provided for parking by the applicant showed an area of 12'
x 301 . The Board found that this would not be adequate and
that clients of the applicant would be required to park on a
street that is currently congested. Therefore the additional
traffic generated by the home occupation would be
detrimental because it would make a bad situation worse.
4 . The requested use will not overload any public water,
drainage or sewer system. The Board found that the proposed
use would unduly subject the neighborhood to hazards
affecting health safety or the general welfare, because of
the increase in traffic which would result from the home
occupation.
5. The requested use does not meet all special regulations set
forth in the Zoning Ordinance, specifically Sections 11. 11,
see "Attachment A" , for criteria.
6. The Board found that the requested use will unduly impair
the integrity of character of the district and adjoining
zones because the road is narrow and heavily travelled.
Additionally, in the evening, when the applicant will
conduct the home occupation, abutters who reside on the
street stated that parking is hard to find now, and is
nearly impossible in the winter, with snow plowed to the
sides.
In reviewing the special Permit Application, and the site plan
submitted with the Special Permit, the Planning Board:
1. Voted to Grant the waivers as listed below:
* To show the name and address of the owner and
developer, the name of the project , the date and scale
of the plans on the submitted site plan;
* To show the present and proposed use of land and
buildings on the site plan, as the proposed use would
take place within an existing building;
* To show the existing and proposed topography ,
wetlands, streams, surface water bodies, drainage
swales, floodplains and unique natural land features on
the plan because no changes were being proposed;
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City of Northampton, Massachusetts nrT 5
Office of Planning and Development #
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 586-6950 $
FAX (413) 586-3726
•Community and Economic Development
•Conservation •Historic Preservation
•Planning Board•Zoning Board of Appeals
• Northampton Parking Commission
DECISION OF
NORTHAMPTON ZONING BOARD OF APPEALS
APPLICANT: H. JOHN & SEBERN FISHER
ADDRESS: RTE. # 1, BOX 180, CUMMINGTON, MA 01026
OWNER: ELLEN SEILER/MARGUERITE SEILER
ADDRESS: 32-34 ELIZABETH STREET
RE LAND OR BUILDINGS IN NORTHAMPTON AT: 32-34 ELIZABETH STREET
MAP AND PARCEL NUMBERS: MAP # 25C PARCEL 130
At a meeting conducted on September 22, 1993, the
Northampton Zoning Board of Appeals voted 1 in favor and 2
agains he request of H. John & Sebern Fisher for a
loolloolow "WWRIWOW under the provisions of Section 11.11, page 11-31
o the Northampton Zoning Ordinance, to conduct ,a.,home ccupation
for a py oraot-ice-a„. The
applic or a permit is, there "b i iiib'd�.
Zoning Board Members present and voting were: Acting Chairman Dr.
Peter Laband, Associate Members: M. Sanford Weil, Jr. , Alex
Ghiselin.
In Denying the Special Permit, the Zoning Board of Appeals found:
1. The requested use for a home occupation is listed in the
Table of Use Regulations as a Special Permit, in the
District for which the application was made.
2 . The requested use does not bear a positive relationship to
public convenience or welfare because the practice of
psycho therapy is not complimentary to a residential
neighborhood. Since a home occupation should not be
visible, a psycho-therapy practice has the potential to
create additional traffic and increase the numbers of cars
in a neighborhood which is presently a congested area. The
Zoning Board found that a psycho-therapy practice is too
similar to a medical office use, which is not permitted in a
residential district by the Zoning Ordinance.
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