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10D-017 TACEY (26) i i �► .� '..;:.. Y CITY OF NORTHAMPTON MASSACHUSETTS CITY HALL 1 210 Main Street Northampton, MA 01060 LEGAL DEPARTMENT s r2� " 586.6950 l Patrick T. Gleason, Esq. City Solicitor Kathleen G. Fallon, Esq. Assistant City Solicitor September 12, 1988 Paul Duclos, Building Inspector Municipal Building Northampton, MA. 01060 Re: Tacy permit Dear Mr. Duclos: The situation as to the Tacy property hinges on. the concept of a pre-existing non-conforming use. The property is zoned SI. Mr. Tacy operates a. construction yard on that site, a use which currently requires. a- special permit in that zone. (A "construction. yard" is defined as the open storage of raw materials and construction equipment. This use is listed as paragraph 13 under Wholesale, Transportation, and Industrial Uses in Section 5.2 of the Zoning Ordinance. ) Under the Zoning Ordinance, this use currently requires a. special permit in the SI zone. However, Mr. Tacy' s'use was in place prior to the imposition of the special permit requirement. Therefore, the construction yard is a pre-existing non-conforming use. As a pre-existing, non- conforming use, it is subject to special requirements and procedures as set forth in Section 6 of Chapter 40A of the Massachusetts General Laws and Section 9 of the Northampton Zoning Ordinance. The essential principle to remember in dealing.. with a non- conforming use is that any change, alteration, or extension of that non-conforming- use requires the permission of the Zoning Board of Appeals. The Board must make a "finding" that the w change, alteration, or extension of the non-conforming use is not "substantially more detrimental" to the neighborhood than is the original use. The following activities, among others, have bee defined as a change, alteration, or extension of a non-conforming use by case law: ( 1) a increase in the intensity of the use; ( 2) the construction of a building or an addition to an existing building housing a non-conforming use; ( 3 ) the addition of other uses even if those uses are allowed by right. Mr. Tacy applied in 1984 for a finding to allow him to construct a building on the property and to add as an additional use a construction supply establishment, an allowed use in the SI zone. That finding was granted by the ZBA. However, Mr. Tacy failed to apply for a building permit within eighteen months of the decision. Since a special permit or finding lapses in eighteen months if not exercised within eighteen months, the Building inspector denied the permit when Mr. Tacy finally did apply nearly two years after the grant of the finding. Mr. Tacy then applied to the ZBA for a finding identical to that granted in 1984. During the process, he decided to request a larger building than that described in the 1984 finding. He was allowed to withdraw his application and submit a revised one showing the larger building on March 4, 1987. On May 6, 1987, after a public hearing, the ZBA denied the application for a finding. Mr. Tacy appealed that decision to the courts where it is awaiting trial at this time. Essentially the issue here is that, since the use on the Tacy property is a pre-existing non-conforming use, Mr.. Tacy cannot expand/alter that use by adding an additional use, even if that use is allowed in the zoning district, or by constructing a building on the site without the granting of a finding by the ZBA. Since the ZBA has denied that finding, Mr. Tacy cannot be issued a building permit unless the ZBA' s decision is overturned by the Superior Court. Subsequently, Mr. Tacy submitted a Form A plan to the Planning Board showing the division of the property into two separate lots. Since both portions of the divided lot had sufficient frontage, the Planning Board was required by law to approve the Form A plan. That approval does not, in any way, certify that the lots created are suitable for building. Approval only certifies that the required frontage exists. It had been discussed at one time that Mr. Tacy might solve his problem by dividing the property, moving the construction yard onto one portion and using the second portion for the allowed use. However, moving the construction yard onto a smaller lot . would, again, require a. finding by the ZBA . since it would change/alter the non-conforming use by intensifying it on that er at. AY-o- I 1 1,11 , no p kation tor a 1n ing or `thaw pu� a has been made. Since the construction yard use is still present on both portions of the divided property,. the situation has. not been altered. A finding by the ZHA is a prerequisite to the. issuance of any building permit. No building permit should be issued for the property as a whole or either of the portions shown on. the Form A plan_ very truly yours, Kathleen G- Fa lon