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10D-017 TACEY (24) -PA'T'RICK ,T. MELNI } AT AT LAW .t w,,.,.,i• R 110 -Ling Street Northampton, MA 0106 AM t April 2 i , 19 8 7p� MP108, 06100NS Tele hone 413-584-6750 City Solicitor 's Office 212 Main Street Northampton , Ma 01060 Re: Eugene Tacy - Application for Zoning Permit Main Street , Leeds , Massachusetts Dear Attoney Fallon and Attorney Gleason: Please be advised that I represent Eugene Tacy and his family concerning his application for a Building Permit to construct a Construction Supply Establishment on their property zoned Special_ Industrial on Main Street , Leeds , Massachusetts . It is my understanding that the Building Inspector has requested a Ruling and that you will also receive a Request for a Ruling from the Zoning Board of Appeals concerning the necessity to obtain a Special Permit for the Building Permit for the Construction Supply Establishment . At this time I would like to set forth in writing the position of Eugene Tacy concerning his belief that: he does not need additional approval in order to obtain a Building Permit in order to construct a Construction Supply Establishmert on that parcel of land . Eugene Tacy and his family nave operated a contractor ' s yard for the open storage of raw materials and construction equipment on this lot for a period of approximately nine years . This was a continuation of a use of the prior owner , George Tobin , who also used this parcel of land for a contractor ' s yard . Neither George Tobin nor the Tacy family had obtained a Special. Permit for the operation of the contractor ' s yard prior to 1984 and that business was operated as a pre-existing non-conforming use under the Zoning Law of the City of Northampton . However , a contractor ' s yard for the open storage of raw materials and construction equipment is allowed in a Special Industrial Zone by Special Permit under current zoning . In September of 1.984 Eugene Tacy filed an Application for a Zoning Permit for the purpose of constructing a building for a Construction Supply Establishment and also in the same application for a Zoning Permit asked for a Special Permit to PATRICK,j. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 Telephone 413-584-6750 -2- conform his pre—existing non—conforming contractor ' s yard . A copy of his application for said Special Permit and a Finding under Section 9 . 3B are attached to this correspondence . In September of 1984 a Finding under Section 9 . 3B of the Zoning Ordinances for the City of Northampton was required in order to construct the Construction Supply Establishment , because although a Construction Supply Establishment is allowed as of right under current zoning , since the pre—existing contractor ' s yard required a Special Permit that had not yet been received by the Tacys , the Construction Supply Establishment , "glowed as of right , was to be used in conjunction with a pre—existing non—conforming use and , therefore , required a finding under Section 9 . 3B of the Zoning Ordinance . It is the position of Tacy that he could have either : 1 . applied for a finding under Section 9 . 3B only , which is a Finding that his Construction Supply Establishment would be not more substantially detrimental than the existing use of the property . That would have been sufficient to allow him to get a building permit to construct his Construction Supply Establishment building . In the alternative , in 1984 he could have : 2 . filed only for a Special Permit to legalize his pre—existing non—conforming contractor ' s yard . However , to be prudent , the Tacys filed for both the Special Permit and the Finding in September of 1984 . On November 28 , 1984 the Zoning Board of Appeals made a Decision "to grant the Special Perm_i.t . . . to construct a building for the purpose of establishing a construction supply business in conjunction with his existing contractor ' s yard on Main Street , Leeds . " Tacy ' s position is that the Decision of the Zoning Board of Appeals was inar ' -tful . written and should have read that the Zoning Board of Appeals made a finding that the construction of a Construction Supply Establishment was not substantially more detrimental than the existing use of the property and that a Special. Permit for the operation of a contractor ' s yard was allowed . In all events , it is clear under Massachusetts General Laws , Chapter 40(a) , Section 9 that both the Application for a Special Permit to allow his contractor ' s yard and the Finding under Section 9 . 3B were allowed , because even though the Decision of the Zoning Board of Appeals was PATRICK J. MELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 —3— Telephone 413-584-6750 unclearly written Massachusetts General Laws , Chapter 40(a) , auction . ai a `per.�it granting .. ' , a inAa acts on upo ark a"lgcation for a SpecPal Pemt` tbgfibtnd adOsbolowing the datke of 1 the` ublic. h ari,,n �` a glnt of the permit applied for . ' Therefore , t e on. 1, 4 wad either °a grant of the permit e is d o� p f h �� grapt .i�f t. e ' Special Permit for c`'ont `�ct�ra�' s ya ceii1 < t b" read into the decision _ off, t o o �d f :A e . •M -, , d_n P�4 tuber of 1984 , since iL- was applied for , it was allowe by -right under Massachusetts General Laws , Chapter 40a , Section 9 . In October and December of 1986 Eugene Tacy applied for a Building Permit for the construction of his construction supply establishment . At that time the Building Inspector declined to issue a Building Permit and took the position that the Special Permit that had been issued in 1984 had expired . It is the position of. Eugene Tacy that the Special Permit granted in September of 1984 for the open storage of raw materials and construction equipment could not have expired after .eighteen months because there is no requirement that any building be constructed in order to continue the OPEN STORAGE of raw materials and construction equipment under the zoning ordinances of the City of Northampton . Therefore , in 1986 when ugene Tacy applied for his building permit for Lhe Construction Supply Establishment his contractor. ` s yard , which prior to 1984 had been a pre-existing non-conforming use , was by virtue of the Special Permit granted in 1984 an allowed use by Special. Permit in a Special Industrial Zone . Therefore , a Construction Supply Establishment , which is alloweri by right under the current Zoning Law in a Special Industrial Zone , required no further action by the Board of Appeals . Even if the Finding that had been made in 1984 had expired due to the eighteen month lapse of time , the current application for a Building Permit by Eugene Tacy does not require a new Finding . I refer your attention to the provisions of 9 . 3 of the Zoning Ordinance of the City of Northampton which provides in part "providing that if such change , extension or alteration RESULTS IN ALL USES complying with the zoning requirements , THEN SUCH FINDING IS NOT NECESSARY . " PATRICK .J. IMELNIK ATTORNEY AT LAW 110 King Street Northampton, MA 01060 Telephone 413-584-6750 Since the contractor ' s yard that Eugene Tacy operates now isnuse S Y P aBuildflmingiecial Permit under the current zoning , the g - Building a pp to build a construction supply establishment is allowed by right since all of the uses of the property will fully comply with current zoning requirements . Therefore , the Tacys need no further action from the Zoning Board of Appeals to obtain their permit . I would be glad to sit down with you and the Building Inspector. if you feel it appropriate to discuss this matter • further . Also , in making a ruling in this matter I would be glad to provide any additional material or information that you might require . Sincerely , PJM/jn Patrick J . Melnik cc . Zoning Board of Appeals cc . Building Inspector for the City of Northampton cc . Eugene Tacy