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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