10D-017 TACEY (14) 04
PATRICK .]Vtla
ATTORNEY ATz t } a f
110 Kin 5trt
g
Northampton, 14i
� ... k
—4iYr d� it e� .
tavdrS &1e<.
City of Northampton q
Building Inspector i ,� r +NO
s�
Members of the
Zoning Board of Appeals
City Hall
212 Main Street
Northampton, Mass . 01060
ids ` w4�•.����,��y;�i 93 �� ��.
TJOTICE
Dear Sirs : P t
� r
Enclosed please find a cc1S�
Tacy and James J. Tacy in the F
Count I of the Complaint r
decision of the Zonina Boardof X
`
This Complaint is filed n
of M.G. L. Chapter 40A, Section s ,,
you should contact the City Sol ,
Northampton for advice concerr11 E 3.;.
� M�f
r'
I;4+ j
iti.
PJM/dfk
Enc .
r t
e
fY~�
h ;
d ,
N
}.t M.
i•;
t'".
t�.r'
r
COPIMOIIPIEALTH OF MASSACHUSETTS
HAMPSHIRE , S . S . DEPARTPIENT OF THE
TRIAL COURT
SUPERIOR COURT DIVISIOI`
CIVIL ACTION No .
EUGENE A. TACY and ]
JAMES J . TACY,
Plaintiffs
Jointly seeking ]
one Recovery ]
]
V. ] COMPLAINT
BUILDING INSPECTOR FOR
THE CITY OF NORTHAMPTON ]
EDWARD J . TEWHILL , ]
CITY OF NORTHAMPTON ]
?'.CTING THROUGH ITS ]
ZONING BOARD OF APPEALS ]
AND ITS MEMBERS , NAMELY ]
DR . PETER LABAND OF ]
40 NORFOLK AVENUE ,
I?ORTHAMPTON, MASSACHUSETTS ]
WILLIAM BRANDT OF 314 SOUTH!, ]
STREET , NORTHAMPTON, 1
MASSACHUSETTS ]
ROBERT C . BUSCHER, ]
54 HILLSIDE ROAD , ]
NORTHAMPTON, MASSACHUSETTS '',
AND THE CITY OF NORTHAMPTOT4, ]
Defendants
COUNT,!
APPEAL OF THE ZONII'TG BOARD OF APPEALS
OF THE CITY OF NORTHAMPTON , AASSACHUSETTS
UNDER THE PROVISIONS OF
MASSACHUSETTS GEHERAIJ LiWS , CHAPTER 40 (A) , SECTION 17
1 . The Plaintiff , Euaena A. Tacy and James J . Tacy are
residents of the City of Northampton and are the owners of
property located on :Iain Street , Leeds , Hampshire County ,
Kassachusetts , which ',property is the subject of this
Complaint .
Law Office 2 . The City of Northampton actina through its Zoning Board of
Appeals and its members , namely Dr . Peter Laband of 40
PATRICKJ.MELNIK Norfolk Avenue , Northampton , William Brandt , 314 South
110KKgSacet Street , Northampton and Robert C . Buscher of 54 Hillside
Yorthampton,MA01060 Road , Northampton and the Building Inspector for the City
of Northampton , Eduard J. Tewhill , are the Defendants
413-584-6750 herein . The City of Northampton is the Defendant in this
Count and each and every Count In this Complaint .
3
3 . The Plaintiffs , Eugene A. Tacy and James J . Tacy, together
with other members of their family , were the owners of a
certain tract or parcel of land which they acquired on
June 1 , 1982 from George D . Tobin. The Plaintiffs and
other members of their family applied for a Special Permit
and a Use Permit to allow the use of the entire premises
for the open storage of raw materials and as a
Construction Supply Establishment at various times
beginning in September of 1984 and continuing until June
of 1987 . The premises are in a Special Industrial Zone in
the City of Northampton and the use of the premises as a
Construction Supply Establishment , the use which is sought
by the Plaintiffs herein, is a use allowed by right in
that Zoning District .
4 . The Building Inspector of the City of Northampton has
denied the use of the premises as a Construction Supply
Establishment as long as the premises are used in
connection with the operation of the business of Tacy
Excavating Construction Company, Inc . as a Contractor ' s
Yard.
5 . The Plaintiffs in his action and their predecessors have
previously used the premises as a Contractor ' s Yard for
the open storage of rawmaterials and construction
equipment which is ',a use allowed by Special Permit in this
District . The Plaintiffs have contended through the
Building Inspector ',and the Board of Appeals for the City
of Northampton that they either have a pre-oxisting
non-conforming use ',of the premises for the open storage of
raw materials and construction equipment or that they were
granted a Special Permit for this use as a result of an
application for a Special Permit filed on September 21 ,
1984 .
G . The merits of the contentions of the Plaintiffs with
respect to the operation of the premises as a Contractor ' s
Yard and the merits of whether or not the Plaintiffs in
this action are entitled to a permit for the use of the
premises as a Construction Supply Establishment on the
entire premises is the subject of a previous Civil Action
filed in this Court , Hampshire County Superior Court ,
Civil Action No . 87-138 . The Plaintiffs have also
contended in Hampshire County Superior Court , Civil Action
No . 87-138 that they are entitled to the use of the
premises as a Construction Supply Establishment only for
the entire _premises even if they are not entitled to use
Law Office
the: entire prc:^iS:?S jointly as a Construction Supply
PATRICKJ.MELNIK Establishment and asJa Contractor ' s Yard . The Plaintiffs
110K%gSwet had previously applied for the use of The entire parcel
N"dmmpWgM1k01060 for a Construction Supply Establishment . This Teas denied
by the Zoning Board of Appeals and that denial is also an
413-584-6750 issue that is the subject of Superior Court , Civil Action
No . 37-132 .
7 . Subsequent to filing the previous Civil rection in this
matter which deals with the use of the premises in z,:air
entirety for use as either a Construction Supply
Establishment only or together with their pre-existing
non-conforming use or use allowed by Special Permit as a
Contractor ' s Yard, the Plaintiffs herein subsequently
divided their land into two separate lots under City
Zonincr.
The premises originally consisted of a tract of land of
more than two acres . The Plaintiffs , by a Plan prepared
by Almer Huntley Jr . & Associates , Inc . dated July 22 ,
1987 which is recorded in Hampshire County Registry of
Deeds in Plan Book 148 , Page 88 , divided the large tract
of land into two separate parcels . The Plan <ias presented
to the Planning Board for the City of Tiorthampton and was
approved as a plan not requiring subdivision approval and
was recorded in the Hamcshire County Registry of Deeds .
Both parcels of land ',shown on the aforesaid Plan of Land
are in the Special Industrial Zone . Both parcels of land
have more than minimum lot size, width, frontage and in
all respects comply with the dimensional requirements of
the Zoning Ordinance ',of the City of lTortharr,pton.
9 . The land that is the ',subject matter of this dispute is
land that is located ',as the most Northerly lot sho,%,n on
the Plan recorded in the Hampshire County Registry of
Deeds in Plan Book 14:S . Page 88 . This parcel of land is
owned by James J . Tacy and Eugene A. Tacy individually as
described in a deed dated September 10 , 1988 record`d in
Hampshire County Registry of Deeds in Book 3261 , Pane 24.3 .
The other parcel of Nand, which is The more Southerly
parcel of land abuttingthe •iill River , is owned by Tacy
Excavating and Construction Company, Inc . as shown on a
deed recorded in Hamp'shir` County Registry of Deeds in
Book 3261 , Page 242 .
10 . The Plaintiffs in chills action Nave entirely :�andoned the
use of the northerly !,lot `_or all uses pursuant to the
request by the Buildi'nng Inspector for the City of
'orthampton .
11 . The previous Building Inspector for the City of
'_torthampton , 'Jillia:: ldimohay, advised the Plaintiffs
herein that if they all of their
construction related equipment and --:aterials from the site
Lawoff�ee on !,*hick they *.wish to construct the Construction Supply
PATRICKJ.MELNIK EStablishment , that he would , in fact , issue a Building
110 King Street Pc--r-it for the Construction Supply Establishment on the
vorthampton,MA 01060 separate 1_a a l b u i l d i n g m- 07_
413-584-6750 Based upon that representation and in raliance thereon the
Plaintiffs herein removed all true}_s , equipment , supplies
and materials frcm the site that is tle subject matter of
this 'ispute , e_xceptinq only those :at:=rials -..at
actually goinq to be used in the physical con c_ructicr. of
the :wilding to be constructed on 711a pre_,iises .
'3 . Subsequently , in August of 1935 th- Piaintifs in this
action filed an application for a Fuilclinq P:=i t for a
Construction Supply Establishment on the di-,='_d parcel of
land that was now free of all suniDli_�s and �_ruipment and
which had been abandoned by the Plaintiffs for use as a
Contractor ' s Yard for purposes of cbtalnina a .Building
Permit as a Constriction Sucply rZstablishm.ent .
_ � . Use of the premises as a Construoticn Supply establishment
is a use allowed by right under City Zoning and the. lot
upon which the Construction Supply P:stablish�ient was
souaht to be constructed ccn..plied in all respects with the
dimensional requir-meats of `h_ City cf 1Torthampton .
15 . Based upon the application cf The Plaintiffs in this
action for the Buildinq Permit , the t.?ien Buildinq
Inspector for the City cf icrthampton , Paul _Ducles , issued
a Foundation Per.rit for the Construction Supply
Establishment , which Foundation Perw'.".t ?daS Blllldlrlq Permit
1Tumber 553 .
is . Based upon the =issuance of Fhe Foundation Per ^.it the
Plaintiffs in r_.":ice actio to
n i. roceeded po._r �i
for the Cons tructisn Supply Establish-,ent on -he pre:r:ises .
Subsequent to the �ourina of the foundation a City
Counsellor for th !, City of Northampton , na ely Raymcnd W.
LaBarae , filed a Co�:iplaint with the Building Inspecr.or on
September 7 , 1980 Yequestlna that the Buildi.:a Inspec—, or
revoke the Foundation Permit. A copy, of the Complaint
filed by City Councillor , Ravmnond TSI. laBarc;e . IS attached
to this Complaint s`.nd ',ar'r.ed El:hihit
7 . Prior to the scheduling of a Hearina before the Zc.- ina
Board of Appeals oy the al-f dity of -_.he issuance of
Foundation Pernit , ', -he Building Ins-ceetor of the Citv of
11ortha-ptcn, Paul . Cuclos , et with the tlayor fcx c.h
CitV of 1Tcrt1-iampton and po2ert C . uuscher , l,alr"an of thi-
=ina Board of :.ppeals of =he v it * of lTorthaw pion , -o
discuss the Plaintwff ' s PEr:-it .'.aolication. As a _.suit
of that _ eeting the 1-:aycr _f the City of 17orthamptc- 1 =.nd
the Chair-an of --he Zonin- Board of appeals instruC ...:d t:h
Building Inspector for the City of iTorthanpton to l"�vcl:e
Law Office the Foundation Permit that had been issued to the
PATRICKJ.MELNIK Plaintiffs . In a letter dated Sept-umber 15 , 193E :h
110 King Street Buildina Inspector for the City of iiortha.npton Cavo:. d the
Northampton,MA 01060 Building Permit that had been previously ,^cen issued . ,
copy of the revocation of the Buj ldlnq Permit, is attached
413-584-6750 to this Complaint :nd is "R"
13 . Nevertheless , on September 16 , 1983 the Buildina Inspector
for the City of 1,Tcrthampton reinstated the Buildina Permit
that had been issued to the Plaintiffs in this action.
Subsequently , on October 17 , 1988 the Zoning Board of
appeals heard the Complaint filed by Counsellor LaBarcxe
concerning the issuance of the Foundation Permit for the
Plaintiffs under the provisions of I-iassachusetts General
Laws , Chapter 40A.
19 . at that Hearing, Robert C . Buscher , Chairman of the Zoning
Board of Appeals , who had previously sat in the closed
meeting between the Mayor of the City of PTorthampton,
himself and the Building Inspector , at which time the
Building Inspector was ordered to revoke the Tacy permit ,
sat as the Chairman of the Zonina Board of :appeals on the
determination of whether or not the Building Permit that
had been issued to the Plaintiffs was proper .
20 . At the Hearing the Plaintiffs objected to Robert Buscher
sitting as the Chair"an of the Zoning Board of appeals or
hearing any testimony concerning the validity of the
permit inasmuch as he had previously sat and gendered an
opinion at an unpostqd non-public meeting between the
Mayor and the Building inspector. A T-ritten objection to
his consideration on 'this matter was filed on October 19 ,
1988 with the Chairman of the Zonina Board of appeals . A
copy of that letter is attached to this Complaint and
marked Exhibit "C" .
21 . Subsequently, at a mo,eting held on ITovember 2 , 1988 the
Zoning Board of Appeals voted unamiously to uphold the
Appeal filed by Raymbind 61. LaBarge requesting the Building
Inspector to revoke the Foundation Permit that had been
issued to the Plaintiffs .
22 . a copy of the decision of the Zonina Board of Appeals is
attached to this Complaint and marked Exhibir_ "D
23 . The Plaintiffs in thi's action allege that the decision of
the Zonina Board of appealsdated November 15 , 1988
exceeds the authorit;r, of the Zoning Board of Appeals and
is erroneous . The Plaintiffs , therefore , allege that the
aecisicn of the Zonin''ct Board of appeals must :'-Ie annulled
and that the action of the Buildina Inspector in issuing a
Buildina Permit for the Plaintiffs be upheld .
Law Office COTUT iTT II
PATRICKJ.MELNIK THE DISOUALIFIC:-.TI011 OF THE
110 King Street CHATRIii-iN OF THE ZODING BOARD OF APPEALS
Yorthampton,MA 01060
24 . The Plaintiffs _ :state each and every paragraph of this
413-584-6750 Complaint as if originally restated herein.
's
i
-J-
25 . The Plaintiffs state that ` ile Chair of the ^min card
of Appeals sat at _ closed unpublished meeti:: at -Thi-.- a
decision concerning the propriety of the issuance of -::e
Building Permit �•.-as decided and the Chairman =nd the
Zoning Board of appeals instructed the Buildi—I Inspector
to revoke the per
�^1 This eeting was held prior to the
public hearing on this matter .
26 . The Chairman of the Zoninq Board of Appeals -Nilo sat at rhe
public hearing had previously made up his mind as to 'nis
decision as to the orepriety of the issuance cf the
building permit and participated in the public ..eetillq of
the Zonina Board of .=appeals on October 17 , 19oS with a
biased predispositicn. His bias and his opinion r7it::
respect to the validity Of the issuance of LuliclnCQ
Permit was apparent in both his rulings and conduct Ciurina
the public hearing.
27 . The Plair.tiffo in this action allege that ti-_ ecisicn of
the Zonina Doard of appeals was actually intl'lenced ,1 tele
Chairman of the Zonina Board of Appeals who %7- :-.=d _n s=avor
of the appeal filed Ly Councillor LaBarge and _hat -h
decision of the retaining members of the Zcnina Bear? ,•f
appeals was inf-_uenced by the actions of the C'.:ai=an .
�� . The Pldlntl=ia all!ec7a thiat they did not receivc a `air aIld
impartial _'.carina 1-'it-i: an Open minded and i-partial
deliberating body at _he time that the decis-_on ?as --.,ad=--
with
".adowith respect to -he propriety of the issuance of she
Building Permit for their Construction Supply
Establishment .
29 . Therefore , the Plaintiffs allege that the decision o - the
Zonina Board of .appeals was i_^properly made , and that they
did not receive a fair and adequate hearing :,'fore an
impartial deiiberatina body and that they ,-ire entitled at
a minimum to a new ':rearing on the propriety of ti:e
issuance of the Building Permit to they. Th Plain,-iffs
,.also allege that tslev have lost _2oney as a - uth
sit of
ais
conduct for which they should be reimbursed .
COUNT III
DaiiAGES rOR ET-iI1:TE1'TT DOPIAITT
Lawoffice Q The Plaintiffs rastate `ach and every Para Traph of this
PATRICKJ.MELNIK Complaint as if cri ginally restated herein.
110 King Street
't0rthampton,1V1A01060 ?1 • T"ne Plaintiffs stat_ that -hey have abandoned the use of
their property for all uses and are seeking a use for the
413-584-6750 parcel of land that is th subject Natter cf this dispute
for use as a Construction Supply Establish-:.ent which is a
use allc!ged by right under City Zonina .
-7-
32 . The Plaintiffs state that the Buil. inu Inspector for the
City of Northampton , and the Zoning Board of Appeals for
the City of Northampton are refusing no allow the
Plaintiffs to use their property for a use that is allowed
them as of right.
33 . The Plaintiffs , therefore , state that if the City_ of
Northampton will not allow the Plaintiffs to use their
property for any lawful use which is allowed by right
under City Zoning that they have effectively taken the
property from the Plaintiffs and the Plaintiffs are ,
therefore , entitled to compensation from the City of
Northampton for the full and fair market value of the
property.
34 . The Plaintiffs state that they have met all of the
conditions and requirements imposed upon them by the rules
and regulations of the City of Northampton the Zoning
Ordinances of the City of Northampton and have met all of
the requests of the acting Building Inspector of the City
of Northampton to allow their property to be used for a
lawfully allowed use !under City Zoning. The failure of
the City of Northamptpn to allow th=em to use their
property for this lawlful use entitles them to just
compensation.
35 . The Plaintiffs demanda TRI AL BY JURY on this Count of
their Complaint .
COUNT IV
36 . The Plaintiffs alleges each and every statement of his
Complaint as if originally restated herein .
37 . The Plaintiffs further^ allege that the officers , employees
and city officials of the City of Northampton are actino
in a concerted effort to force the Plaintiffs to sell to
the City of Northampton their property below its fair
market value for housing for the elderly.
33 . Subsequent to their initial application to allow the use
of their premises as a Construction Supply Establishment
that was filed in 1934 , ..ambers of the City Council of the
City of Northampton and the Planning Board of the City ,f
Northampton filed an application with the City Council for
the City of Northampton to rezone this property to taRe it
Lawoff�" out of Special Industrial Use . The attempt of these
PATMCKI ME12M -individuals to have the property rezoned and taken out of
110 King Street Special Industrial Use was defeated.
Yorthampton,MA 01060
39 . During thisof eriod time�e t_he Housing Authority of the
413-584-6750 City of Northampton attempted to take the property from
the Plaintiffs by use of the power of Eminent Domain to
turn the property into use as Elderly Housing.
_n
l
40 . The Plaintiffs in this action .sere approached by
Councillor LaBarge and requested b_T Councillor LaBaroe to
sell this property to the City of .Torthampton for Elderly
Housing. The Plaintiffs in this action refused to sell
the property to the City of Northampton for Elderly
Housing.
41 . The Plaintiffs state that the actions of the Councillor
LaBarge in appealing the issuance of their Building Permit
and attempting to prevent tale Plaintiffs from using their
property for a lawful use under City Z-oning is an attempt
to diminish the value of the property or force the
Plaintiffs into such serious adverse economic
circumstances that they Tould be fcrced to sell the
property to the City of PTcrtha.-pion for Eld=erly Housing.
42 . The Plaintiffs stat.? that the aLtemOt .:y the HousincT
Authority of the City cf :Torthalnpton to take their
property by Eminent Domain was d feated inasmuch as the
Housing authority determined that it could not rake: -L,
property by Em,inenk Domain for housing purposes . T`.e
attempt by the City of :Torthampton to obtain the property
by purchase has failed because the Plaintiffs do nor
intend to sell th
-G-
�-_16 . The Plaintiffs all_�ae that they are =ntitl�,d to
compensation from the City of Northampton for the full and
fair market value of the diminution of the value of their
property as a result of the unlawful acts and practices of
the officials of the City of Northampton.
47 . The Plaintiffs demand a TRIAL BY JURY on this Count of
their Complaint.
WHEREFORE , the Plaintiffs demand the following:
1 . That the decision of the Zoning Board of Appeals
dated November 15 , 1988 be annulled and That the
Buildinci Permit for the construction of t::e
Construction Supply Establishment be allo-„red.
2 . In the alternative the Plaintiffs demand r_hat t:
case be remanded to the Zonina Board of .,ppeals for a
full and fair acid before an impartial sitting of
members of the ',Zoning Board of Appeals Aho have not
previously rendered a decision on the merits cf their
Petition -oricr
to Public Hearinct.
3 . That damages bel assessed against the Defendants in
this action for: such sum as will be necessary to
compensate the Plaintiffs for all of the loss of
profits , diminution of the value of their property ,
loss of use of ',their property, loss of fair rental
value of their property , and such other damages as
the Plaintiffs have suffered as a result of the
unfair and unlawful acts and practices of the
Defendants in this case .
4 . Attorney ' s fees and costs .
5 . The Plaintiffs demand such other relief as may be
appropriate .
G . The Plaintiffs ',demand a TRIAL BY BURY on Counts III
and of this Complaint .
lcvember 18 , '_988
patriC.': J . i!elnik Esq .
Law Office S t� ” t
PATRICK J.MELNIK i i o r t h a m p t o n , 'Iia 010 5 0
110 King Street 5-84-6750
iorthampton,MA 01060
413-584-6750
Paul Duclos r
Building Ins
City of Northam for
Wallace J. Pucha skz
Northampton) Munic' September 7, 19$8
Massachusetts 1Pa1 office Building
g
Re: Zoning plaint _.
d. si
Building Inspector:
Pursuant
to
file a Zoning our Conversations
construction f aPfoaznt ag insteover the past
(158 weekend
N• Maple St undation f°r issuance of Building ' I w°u3d like
(Parcel 17, Map 1 ' Florence
584-7114 con
permit #553 to form
the North ) far pis Supply Establis Issued fo
I believe hment to Eugener the
g'3�b• that the arr►Pton 2oni g/Assessor Sat 175 Main to Tacy
made ) and in-viol issua6dd of Maps). in Le
an August 12, 1987n Of Whe. ]� tzO$ Building pe eds
ecis'
Your res � tot to h16h M�';; .T�y has fNlrthampton rmit is Zan n°lotion of Sect
greatl Pan `' this an q g Board
PPreciated. complaint Ppeal, Appeals
°f
at 'Your earliest possible convenience would be
Respectfully,
�ymond W, LaB
1 tY Counr_ilor_War
d7
(rifer of Nart4ampton
e
Offirr of the �nspertur of Pitilbings -
JUT
212 Mau:Street•Municipal Building •_
Northampton, Muss. 01060
COMPLAINT SHEET
;:w -
How received: Telephone ( )'� �; ?, Complaint No.
Personal ( ) � � � �
Date: C
1 -
Letter X) ; . Time: ��A.M. P.M.
( tt1G111- �.
584-5561
��.,. Telephone No.
Complainant's Name: Raymond W LaBargey.r,,CoUnci]or-Ward 7
Complainant's Address: 24 Water Street, T Ppriq, f4A 01 n5; -
Complaint received by: DEP'
212
VIOLATIONS OF: Northampton, Miss.
l Chapter 44 Zoning Ordinances, City of Northampton
❑ Chapter 802 As Ammended Mass. State Building Code
❑ Sanitary Code, Art.2
Complaint reported against:
Name: Eugene Tacy , Tei.584-7114
Address: 158 N Maple St. , Florence, MA
Location of complaint: 175 Main St. , Leeds, MA Map# 1 OT) Lot# I
Signature of Complanants:
Nature of complaint:
Investigation: Yes ( ) No ( ) Investigated by:
o�gHAMp�o
GrZf� of 'Nax#4alllpton
$ +� �1Glxssacgnsetts
DEPARTMENT OF BUILDING INSPECTIONS
INSPECTOR 212 Main Street ' Municipal Building
Paul J. Duc 1 os Northampton, Mass. 01060
September 12, 1988
Mr. Raymond W. LaBarge
24 Water Street
Leeds, Mass. 01053
Dear Mr. LaBarge:
Pertaining to your complaint filed in our office on September 7, 1988,
made against Eugene Tacy, 158 North Maple St. , Florence, on the property he
owns at 175 Main Street, Leeds.
My feeling is that your complaint is unfounded under Regulations, Section
9.3b is inappropriate to the building permit that was issued. This is allowed
by right to the owners under current rebulations of the Zoning Ordinance for
the City of Northampton.
Sincerely,
Paul J. Duclos
Building Commissioner-
PJD/lb
pc : Mayor
Mr. Tacy
City Solicitor
Larry Smith
}
.l
Q �
= W
* +� �lassacl�nsetfs
of Nart4alliptan
� J W
" DEPARTMENT OF BUILDING INSPECTIONS
INSPECTOR 212 Main Street ' Municipal Building '
p1M ti��y
Paul J. Duc 1 os Northampton, Mass. 01060
September 15, 1988
Tacy Brothers
158 North Maple St.
Florence, Mass. 01060
Dear Gentlement:
As of this date the permit dated August 29, 1988, #553, has been revoked
by this office. Construction must stop immediately.
If there are any further questions pertaining to this matter please feel;
free to contact me at 586-6950 ext. 242.
PJ.
losmmissioner
PJD/lb
pc: Atty. Melnik
Mayor's Office
Legal Dept.
P
PATRICK J.MELNIK
=; ATTORNEY AT LAW
110 King Street
Northampton, MA 01060
October 19 , 1988 Telephone 419.584-6750
i p
Robert Buscher
Chairman of the
." Zoning Board of Appeals
Municipal Office Building _
Main Street
Northampton, Ma 01060
Re : Eu_gene_Tacy - Appeal off'Raymond LaBarge
Dear Mr. Buscher:
As a follow up to my oral objections to your deliberation
on the Tacy matter that I registered at the Public Meeting on
- October 17 , 1988 I am hereby formally requesting that you recuse
yourself from deliberation on the Tacy matter and that you order
a new Public Hearing to be held which
in. you would not participate
The reason for this request is not a challenge to your
personal integrity, which I ',and the entire community hold in
high r6gard, but rather the ',appearance of impropriety that is
created as a result of the newspaper articles that have surfaced
surrounding the controversy relating to the termination of the
Building Inspector . The Daily Hampshire Gazette and I believe
the Springfield Union have Moth reported that you have
participated in meetings at ;the Mayor ' s office where a
discussion and resolution of!, the Tacy Building Permit was agreed
upon by all parties concerned. The Daily Hampshire Gazette and
I believe the Springfield Union both reported that you met in
this non-public , non-posted meeting at which only City Officials
were present to discuss the merits of the Tacy Building Permit
Application and as a result of that meeting it was decided that
Eugene Tacy would not be entitled to a Building Permit unless he
removed his contractor ' s equipment from both of his lots and not
just the lot that is the subject matter of his request for a
Building Permit. It also appeared from the newspaper reports
that no persons representing Eugene Lacy were present at the
meeting when these deliberations took place and the decision was
made . As I indicated to you in a previous letter, I do not
believe that decision making process was
proper and I believe
that your participating in the proper hearing procedure after
having been a
party to these prior deliberations is not
correct.
�_ r
PATRICK J.MELNIK
ATTORNEY AT LAW
110 King Street
Northampton, MA 01060
_2 Telephone 419-584.6750
As you chaired the meeting on October 17 , 1988 it was
quite obvious that your mind had already been made up and that
you consider both of the lots on Main Street that are in this
Special Industrial Zone are to be treated as one lot for Zoning
purposes even though they have been legally divided and are not
currently ;n common ownership. I believe that any person who is
,� r14,'r
esident�of the City of Northampton and comes before the
� tCr� '; Tiirig, load of Appeals is entitled to a fair hearing before an
unbiased body. It appeared to me at the meeting
,t nigh}' that you had already made a decision as to how you
x
,t.h respect to the Tacy Building Permit and if that
sreached as reported by the newspapers at a closed
"fi ta �' , et 'rtgl��the Mayor ' s Off ice that puts a cloud on the entire
„ wp oces,s `t l$t 'should. treat all parties fairly. At the ver
t tk�' �iewspap er .:accounts of your meeting in the Mayor' s
�tR ether ,public officials to hear only one side of the
O ;` he` Tacy :Application and then participating as a
iaVih",;the decision making 'process presents an appearance
that' I believe undercuts and undermines the public
confidences in the integrity sof the Zoning Board of Appeals.
rF,S
r c,r3 +a
Therefore, I ask you to reconsider your decision to
participate in the decision making process with respect to the
merits of
' t c the Building Permit and I ask
you to remove
"yourself from deliberations in this matter. I believe that Gene
Tacy is entitled to a Hearing before an impartial , open minded,
4LL� and unbiased board and there are alternate members of the Board
;. who could sit and consider this matter in your absence.
'tw ,
erely,
Patrick J. M lnik
PJM/jn
cc. Mayor David Musante
cc . Kathleen Fallon
cc. Eugene Tacy +
CITY OF NORTHAMPTON
$ ZONING BOARD OF APPEALS
! 4
NORTHAMPTON, MASSACHUSETTS 01060
DATE: November 15 , 1988
RE: THE APPEAL OF RAYMOND LA BARGE OF THE ISSUANCE BY THE
BUILDING INSPECTOR OF FOUNDATION PERMIT #553 TO EUGENE TACY FOR
THE COMMENCEMENT OF 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 a decision of the Zoning Board of Appeals of
the City of Northampton was filed in the Office of the City Clerk
On: NOVEMBER 15, 1988
Sustaining the Appeal, and finding that the issuance of the
Permit was erroneous.
For Property Located at: 175 Main Street, Leeds .
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
i
f�
i
DECISION OF
NORTHAMPTON ZONING BOARD OF APPEALS
I
I
ii At a meeting held on November 2, 1988 , the Zoning Board of
�i Appeals of the City of Northampton voted to sustain the
�i Appeal of Raymond LaBarge of the issuance by the Building
Inspector of Foundation Permit #553 to Eugene Tacy for the
commencement of construction of a Construction Supply j
Establishment at 175 Main Street, Leeds. Present and voting f
were Chairman Robert D. Buscher, Dr. Peter Laband, and
i; William Brandt.
The findings were as follows:
The property is zoned Special Industrial. Prior to the
'i division of what was Parcel 7 of Sheet 10D of the
Northampton Assessor' s Maps , the entire parcel was used as a
li construction yard. A construction yard use in an SI Zone i
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
l by Chapter 40A, Section 6 of the Massachusetts General Laws,
i' and Section 9 of the Northampton Zoning Ordinance. Chapter i
�i 40A states that a pre-existing, nonconforming use may be
!; changed, altered, or expanded only after a Finding by the
�I 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) ,
I Northampton Zoning Ordinance] .
Applicant 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. Applicant' 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.
i
i
DECISION OF THE NORTHAMPTON ZONING BOARD OF APPEALS IN THE
MATTER OF THE APPEAL OF RAYMOND LABARGE OF THE ISSUANCE OF A
BUILDING PERMIT TO EUGENE TACY. PAGE TWO.
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
give any guarantee that the lots will qualify as building
j 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
i, common ownership may be separated or the ownership of one or
more lots changed so as not to be in conformance with a
j! provision of this ordinance. " The pre-existing,
nonconforming use has been shifted to a fractional portion j
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
I nonconforming use on one lot is resolved, neither of the two
!i lots shown on the "ANR" Plan conform to the Zoning
li Ordinance.
The Building Inspector' s issuance of the Foundation Permit
( #553 ) was erroneous.
Robert C. 8uscher, Chairman
li
Dr. Peter Laband I
;�f
William Brand
I