10D-017 TACEY (26) i
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CITY OF NORTHAMPTON
MASSACHUSETTS
CITY HALL 1
210 Main Street
Northampton, MA 01060
LEGAL DEPARTMENT s
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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
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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