Loading...
10D-017 TACEY (9) PATRICK J.MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 q , 19'39 Telephone 413.584.5750 :, �, 6 FV7 het FEB 14 ON u =1 77 DEPT.OF BUILDING INSPECTIONS t,r z;= NORTHAMPTON,MA.01060 a:n tla e =a1 �- cv CT^?2?= - C= on St1c_ L� _'.7s r':a ps"n' Hac.._.c' -ls_t'_ . mr+^ .a".'c p--D`.a C' c f �JC..ry r..'� i� `.K_.� C'T -h- r=t; ,Cf �'._.�t..C�:^'n t c_Z TA!Ii_C:1 af" icr. P i; S, Z' 3 i a:. been ti lecl i '1 t:: ry^i t c (= _Uiit-"7 c - 2 �.-A-L. J V " ice - _- :< ------------ COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, S . S . DEPARTMENT OF THE TRIAL COURT SUPERIOR COURT DIVISION CIVIL ACTION NO. 88-350 ` EUGENE A. TACY et al . , ] Plaintiffs . SEB4 M9 THE ' ZONING- BOARD OF APPEALS ] ' ` �. . ' :FOR ,THE CITY OF NORTHAMPTON, ] � .� . ;Defendants MOTION TO AMEND A COMPLAINT Now come the Plaintiffs, Eugene A. Tacy and James J. Tacy, owners of real estate located on Main Street in Leeds , Hampshire County, Massachusetts that is the subject matter of the }° Complaint that was 'filed in this action. f , Count I of the Plaintiffs ' Complaint that was previously filed was an appeal of the decision of the Zoning Board of Appeals revoking a foundation permit for the construction of a building located on the premises owned by the Plaintiffs . Subsequently, the Building Inspector revoked the building permit that was issued for the building to be constructed on the =` premises , and the Plaintiffs in this action filed an appeal of the decision of the Building Inspector revoking their building ..permit. The Zoning Board of Appeals recently heard the Plaintiffs ' appeal of the revocation of their building permit and the Zoning r. Board of Appeals upheld the decision of the Building Inspector JAWOffice ce .' �ATFuCkj MELNIK to,_revoke the building permit. �l1(}$in$5tzeet' s t �T. .N' ry'tM� •moi _- _ 3 l jj -2- The substance of the revocation of the building permit is procedurally and factually identical to the facts contained in t Count I of this Complaint with respect to the revocation of the foundation permit for the same building. WHEREFORE, the Plaintiffs state that it would be in the interest of judicial economy to amend the complaint to allow the Plaintiffs in this action to pursue their appeal of the t revocation of ,,the. building permit simultaneously with the �remaining ;Counts of. this action. WHEREFORE, the Plaintiffs move this Court to allow the Plaintiffs to amend their Complaint by adding at the end of the Complaint the following: COUNT V 48 . The Plaintiffs restate the previous 47 paragraphs of this `...; Complaint','. as if restated herein. 49 . The Plaintiffs state that the Building Inspector for the City of Northampton revoked their building permit , #632 , for the construction of the Construction Supply Establishment on their property. 50. The Plaintiffs filed a Notice of Appeal with the City Clerk for the City of Northampton on October 20 , 1988 requesting review of the decision of the Building Inspector revoking the permit. Copy of the Notice of Appeal is attached . . hereto and marked Exhibit "E" . iiucx j��tavtx •'' • INA":..,. ..::,.. 1�O King Street''. anpioa; Aoioso1'-- 51. The Plaintiffs state that the Zoning Board of Appeals heard { ty -3- the merits of the Plaintiffs ' appeal of the decision of the Building Inspector to revoke the building permit. 52 . The Plaintiffs further state that at a meeting held on January 26 , 1988 the Zoning Board of Appeals voted to uphold the Building Inspector ' s decision to revoke the ,building permit issued to the Plaintiffs . 53. The Plaintiffs file this appeal pursuant to the provisions of Massachusetts General Laws , Chapter 40A, Section 17 requesting this Court to annul the decision of the Zoning Board of Appeals upholding the decision of the Building Inspector revoking the Plaintiffs ' building permit. { t 54 . The members of the Zoning Board of Appeals sitting at the Hearing with respect to the appeal of the Building Inspector 's order revoking building permit #632 were Sanford Weil of 96 Washington Avenue, Northampton - William Brandt, as Acting Chairman of 314 South Street, Northampton and Irene David of 213 Fairway Village, Northampton. WHEREFORE, the Plaintiffs demand the following: 7 . That the decision of the Zoning Board of Appeals made at a meeting held on January 26 , 1988 be annulled and the building permit of the Construct' on Supply Establishment be . ;ordered to be reissued by the ild' g Inspector. February 3 , 1989 Patrick J. Melnik 110 King Street Northampton, Mass. 01060 Law Ofica :4r;. lging$tteet ti,4 % , . ,, 4gHAMPT CITY OF NORTHAMPTON $ ZONING BOARD OF APPEALS NORTHAMPTON. MASSACHUSETTS 01060 i February 3 , 1989 RE: EUGENE TACY' S APPEAL OF THE BUILDING INSPECTOR'S REVOCATION OF BUILDING PERMIT NUMBER 632. At a Special Meeting held on January 26 , 1989, the Zoning Board of Appeals of the City of Northampton voted unanimously to uphold the decision of the Acting Building Inspector to revoke Building Permit #632 which the Board felt had been erroneously issued to Eugene Tacy for the construction of a Construction Supply Establishment at 175 Main Street, Leeds. Pursuant to the Provisions of the General Laws of the Commonwealth of Massachusetts, Chapter 40A, Section 15 , notice is hereby given that the Decision of the Zoning Board of Appeals of the City of Northampton was filed in the Office of the City .Clerk on February 3 , 1989 . If you wish to appeal this action, your appeal must be filed in Superior Court within 20 days of the date this decision was filed in the Office of the Northampton City Clerk. Robert C. Buscher, Chairman DECISION OF NORTHAMPTON ZONING BOARD OF APPEALS At a Special meeting held on January 26, 1989, the Zoning ' Board of Appeals of the City of Northampton voted to uphold the decision of the Acting Building Inspector to revoke Building Permit #632 which the Board felt had been erroneously issued to Eugene Tacy for the construction of a Construction Supply Establishment at 175 Main Street, Leeds. Present and voting were Acting Chairman William Brandt, Irene David, and M. Sanford Weil, Jr. The findings were as follows: The property is zoned Special Industrial. Prior to the division of what was Parcel 7 of Sheet 10D of the Northampton Assessor' s Maps, the entire parcel was used as a construction yard. A construction yard use in an SI Zone requires a Special Permit. Since the construction yard use of the site predates the Special Permit requirement, it is a pre- existing, nonconforming use, and as such, is regulated by Chapter 40A, Section 6 of the Massachusetts General Laws, and Section 9 of the Northampton Zoning Ordinance. Chapter 40A states that a pre-existing, nonconforming use may be changed, altered or expanded only after a Finding by the Zoning Board of Appeals that the change, alteration, or expansion is not substantially more detrimental to the neighborhood than the current use. [Section 9.3 (b) , Northampton Zoning Ordinance] . Tacy proposes to build a 60 ' x 60 ' building on the property, and to use that building to house a construction supply establishment, an allowed use in a Special Industrial Zone. Tacy' s original application for zoning relief in 1984, and the 1987 application, indicated that the building would be used both for the nonconforming use (repairing and storing equipment) , and the proposed new use. The application for which a permit was granted in 1988 indicated that the building would be used only for the construction supply establishment. If the nonconforming use is still present on the lot, the addition of either a building or a new use, even if that use is allowed, is an expansion of that nonconforming use and requires a Finding by the Zoning Board of Appeals that the proposed use is not substantially more detrimental to the neighborhood than the existing use. The Planning Board did in fact approve an "Approval not required under the subdivision control law" for the divided site. The only zoning issue resolved by the approval of such a plan is that each lot, as created in said plan, has sufficient frontage for that zoning district. It does not I DECISION OF THE NORTHAMPTON ZONING BOARD OF APPEALS IN THE mow" MATTER OF THE APPEAL OF EUGENE TACY OF THE REVOCATION OF A BUILDING PERMIT ISSUED TO HIM. PAGE TWO give any guarantee that the lots will qualify as building lots. Section 6.4 of the Northampton Zoning Ordinance states that, "No lot. . .may be divided so as not to conform with a provision of this ordinance. No group of lots in a common ownership may be separated or the ownership of one or more lots changed so as not to be in conformance with a provision of this ordinance. " The pre-existing, nonconforming use has been shifted to a fractional portion of the original lot, thereby intensifying that use, which is an alteration which requires a Finding by the Zoning Board of Appeals. Until the issue of the intensification of the nonconforming use on one lot is resolved, neither of the two lots shown on the "ANR" plan conform to the Zoning Ordinance. The Board found that the reasoning behind the Decision to uphold the Appeal of the issuance of Foundation Permit #553 applies identically to this Decision to uphold the revocation of Building Permit #632. William Bra t, Chairman M.Sanford Weil, Jr. 1 d Irene David Decision on Tacy Appeal from Action of Building Dept. The Applicant appealed the revocation of a building permit issued by the Acting Building Inspector following the suspension of the Inspector who had previously issued the permit. The basis of the appeal was the assertion by the Applicant that the permit had been issued to build a structure for a Building Supply operation on a lot in Leeds spot zoned Special Industrial where the construction was permitted by right. The building lot in question had been part of a larger parcel which had contained a pre-existing nonconforming Construction Business. Prior request for a Finding in order to build a 60X60 foot building on the larger lot and to conduct a Building Supply operation had been denied by a split vote and is on appeal .The larger lot was jointly owned by a',father and four sons. Subsequently, the larger parcel was split so as to produce two parcels, each of which conformed to dimensonal ' requirements. For convenience we will discribe the northerly parcel as lot B and the southerly parcel as lot A.The Construction operation was entirely moved onto lot B, exaserbating the prior non-conformity by increasing the density of the operation.- To allow this a further finding is required, in accordance with Section 6.4 of the zoning ordnance. This has never been applied for. After .creating the two parcels the father died and bequethed the Construction Business to two sons. Then by an exchange of deeds the other two sons acquired ownership of lot A. . They now claim that they can construct the building on this parcel by right. The Assistant City Solicitor has asserted that by increasing the density of lot B without a Finding, lot A has been "tainted" and therefore still falls under the limit of section 6.4. A use previously denied before being separated from the balance of the larger parcel continues to be illegal . Accordingly I find that the reasoning which produced the upholding of the revocation of permit #553 to construct the footing also applies to the revocation of permit 632 to construct the structure. I will vote to uphold the action of the Building Dept. to revoke permit #632. Northampton Zoning Board of Appeals January 26, 1989 Special Meeting Pane One The Northampton Zoning Board of Appeals met at 5: 00 p. m. in Room 18 of City Hall on January 26, 1989, to announce a decision in the matter of Eugene Tacy' s appeal of the revocation of Building Permit #632 by the Acting Building Inspector. Present and voting were Acting Chairman William Brandt, Irene David, and M. Sanford Weil, Jr. Mrs. David moved the minutes of the January 18, 1989 meeting be approved, Mr. Weil seconded, and the motion passed unanimously.The Secretary announced that Atty. Melnik, who represents the Appellant, had delivered an original and two copies of a letter and an 11-page "Memorandum in Support of Tacy' s Appeal" to the Board Secretary at 10: 30 this morning. The Board acknowledged that the documents had been tendered, but Mrs. David moved that they not be accepted, since the Public Hearing was closed, and it would be improper to accept testimony from Appellant, when no one else had an opportunity to do so. Mr. Weil seconded, and the motion passed unanimously. The documents were not shown to the Board members. Mr. Weil opened by reading a prepared statement, a copy of which is attached and made a part of these minutes. Mrs. David said she fully agreed. Ch. Brandt said that he found in favor of the Building Inspector. He stated, "I believe the separation of the lot into two lots intensifies the pre-existing nonconformancy, and a Finding is needed. I feel that Section 6.4 clearly states that a lot cannot be divided so as not to conform. I interpret that as requiring a Finding under Section 9 . 3 . I agree with Miss Fallon that the lot is tainted, and the Building Permit was properly revoked. " Mr. Weil moved that the appeal be denied. Mrs. David seconded, and the motion passed unanimously. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. William Brandt, Chairman