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10D-017 TACEY (27) TYPE OR USZ: SALL POINT PEN.—BEAR DOWN FIRMLY 10D _ / 7 MASSACHUSETTS TRIAL COURT SUPERIOR COURT DEPARTMEN AzzahlE T)VhCIVIL ACTION COVER SHEET —, SS. (To be filed with each Complaint) NO. PLAINTIFF(S) DEFENDANT(S) Eugene A. Tacy et al . Building Inspector for the City of Nortites Lft _ __ r ATTORNEY(S) (Firm Name,Address,Tel.) AT7 ga Patrick J. Melnik - 110 King Street BBO# Northampton, MA 584-6750 I nulM 26 087 Place an R In one box ORIGIN OM OF 611,111MING INVECTM 1 NORINAM11ft MOL 01060 C3 1. FOI Complaint 04. F04 Dist.Ct.Appeal c.231,s.97 0 2. F02 Pamoval to Sup. Ct.c.231,9.104 C-1 5. F05 Reactivated after Rescript; Relief 0 3. F03 Retransfer to Sup. Ct.c.231,s.102C from judgment/order (Mass.R.Civ. P.60) Place an N In one box only NATURE OF ACTION CONTRACT REAL PROPERTY MISCELLANEOUS C] A01 Services, labor and materials (:1 COI Land taking (eminent domain) 0 E02 Appeal from administrative agency, E] A02 Goods sold and delivered ;K CO2 Zoning appeal,G.L.c.40A G.L.c.30A 0 A03 .Commercial paper 0 CO3 Dispute concerning title C] E03 Action against Commonwealth or E] A08 Sale or lease of real estate 0 C04 Foreclosure of mortgage Municipality, G.L.c.258 E] A99 Other(specify) 17 C99 Other(specify) Cl E04 Taxpayer suit, G.L.cAO s.53 El EOS Confirmation of arbitration awards, TORT G.L.c.251 EOUITABLE REMEDIES El E06 Massachusetts Antitrust Act C] B03 Motor vehicle negligence-personal G.L.c.93 Injury/property damage 0 001 Specific performance of contract 0 E08 Appointment of receiver • B04 Other negligence-personal Injury C1 D02 Reach and apply,G.L. c.214, property damage s.3(6)-(9) C3 E09 General contractor's surety bond, • 805 Products liability 0 D06 Contribution or Indemnification G.L.c.149,ss.29,29a FJ 806 Malpractice-medical 0 D07 Imposition of trust 0 ElO Summary process appeal 0 B07 Malpractice-other El DOB Minority stockholder's suit 0 Ell Workman's Compensation (specify) El Did Accounting CJ E12 Small Claims Appeal ❑ B08 Wrongful death,G.L. c.229,9.2A C3 012 Dissolution of partnership [] E13 Labor Dispute 0 815 Defamation (libel-slander) 0 D13 Declaratory judgment,G.L.c,231A ED E14 Chapter 123A Petition—SOP 0 B99 Other(specify) 0 D99 Other(specify) 0 E15 Abuse Petition, G.L.c.209A 0 E16 Auto Surcharge Appeal 0 E17 Civil Rights Act, G.L.02,ss.IIH-1 0 Egg Other(specify) SUPERIOR COURT RULE 29. Requirement of statement as to money damages to prevent the transfer of civil actions to District or Municipal Court Departments. 1. Superior Court Rule 29, as amended requires the statement of money damages on the reverse side be completed. 2. Failure to complete the statement, where appropriate, will result In transfer of this action (Superior Court Rule 29(2). SIGNATURE OF ATTORNEY OF RECORD DATE: (OFFICE USE ONLY—DO NOT WRITE BELOW THIS LINE) RECEIVED DISPOSITION BY: A. Judgment Entered B. No Judgment Entered DATE: 0 -i. Before jury trial or non-jury hearing El 6. Transferred to District Court DISP ENTERED 02. During jury trial or non-jury hearing under G.L.c.231,s102C 03. After jury verdict BY: 04, After court finding DATE: 05. After post trial motion Disposition date CLERK'S OFFICE COPY mtc003-07/84 COMMONWEALTH OF liASSACHUSZ-77S ' SS Superior Court Department Statement of Damages Pursuant to Superior Court Rule 29 To Prevent Transfer to District or Municipal Court Departments (Applicable to Civil Actions) 1. This action Is not subject to Rule 29 Remand for the following reason(s): (concise statement as to why this action is not remandable, e.g., party seeking equitable relief, declaratory judgment, action against commonwealth or municipality,etc.) 2. This action is subject to Superior Court Rule 29 and the following detailed statement pursu- ant to Rule 29 sets forth the facts in full and itemized detail upon which the plaintiff relies as constituting the damages in this action: (if tort action, for example, specify doctors' bills, hospital bills, out of pocket expenses, etc. that would Narrant a reasonable likelihood that recovery will exceed $7,500.) (if contract action, state with particularity damages which would warrant a reasonable likelihood that recovery will exceed $7,500.) �./.J.J �.......... . ... ...... .... ..... ��e) (dpnatuee of attorney of reoord or pro so) COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE , S .S . DEPARTMENT OF THE TRIAL COURT SUPERIOR COURT DIVISION CIVIL ACTION No . EUGENE A . TACY , JAMES J . TACY , RICHARD J . TACY , HAROLD G . TACY and HELEN N . TACY , Plaintiffs Jointly seeking one recovery V . COMPLAINT THE BUILDING INSPECTOR FOR THE CITY OF NORTHAMPTON , THE CITY OF NORTHAMPTON , ACTING THROUGH ITS ZONING BOARD OF APPEALS AND ITS MEMBERS , NAMELY DR . PETER LABAND , OF 40 NORFOLK AVENUE , NORTHAMPTON , MASSACHUSETTS WILLIAM BRANDT , OF 314 SOUTH STREET, NORTHAMPTON , MASSACHUSETTS and M. SANFORD WEIL, JR . , OF 96 WASHINGTON AVENUE, NORTHAMPTON , MASSACHUSETTS , Defendants 1 . Eugene A . Tacy , James J . Tacy , Richard J . Tacy , Harold G . Tacy and Helen N . Tacy are individuals residing at 158 North Maple Street , Florence , (Northampton) Hampshire County , Massachusetts and are the owners of real estate located on Main Street , Leeds , (Northampton) Hampshire County , Massachusetts which real estate is the subject matter of this Complaint . 2 . The City of Northampton acting through its Board of Appeals and its members , the Defendants named herein , namely Dr . Peter LaBand of 40 Norfolk Avenue, Northampton, Hampshire County , Massachusetts , William Brandt of 314 South Street, Northampton , Hampshire County , Massachusetts and M. Sanford Weil , Jr . of 96 Washington Avenue , Northampton , Hampshire County , Massachusetts are the acting members of the City of LawOffice Northampton Zoning Board of Appeals that sat at a Hearing 'FRICKJ.MELNIK held on May 6 , 1987 and are all Defendants herein . 110 King Street 'hampton,MA 01060 413-584.6750 -2- 3 . On or about February 20 , 1987 Eugene A . Tacy filed an application for a Special Permit for use of his real estate on Main Street , Leeds , (Northampton) , Hampshire County , Massachusetts for open storage of raw materials and construction equipment and also in said application made an application for a finding under the provisions of the Zoning Law for the City of Northampton for the use of the property to build a construction supply establishment . A copy of the application of Eugene A. Tacy dated February 20 , 1987 is attached to this Complaint marked Exhibit "A" and is made a part hereof . 4 . Eugene A . Tacy and his family have owned this real estate since June 1, 1982 and have operated the premises as a construction supply establishment and for the open storage of raw materials and construction equipment since that date . The Plaintiffs in this action acquired the property from George D . Tobin who had previously used the premises as a contractor ' s yard for the open storage of raw materials and construction equipment for many years preceeding the acquisition by the Plaintiffs herein . 5 . On or about September 21 , 1984 the Plaintiffs in this action filed an application for a Special Permit to allow the use of the property for the open storage of raw materials and construction equipment and also requested a finding for construction of a building for the use as a construction supply establishment . A copy of the application filed on September 21 , 1984 is attached hereto and marked Exhibit "B" and is made a part hereof . 6 . At a meeting held on November 28, 1984 the Zoning Board of Appeals granted the Special Permit for the use of the property as open storage of raw materials and construction equipment and also granted the finding that the Plaintiffs herein could construct a building for a construction supply establishment . 7 . Thereafter , the Plaintiffs herein filed an application to the Building Inspector for the City of Northampton for a permit to build the construction supply establishment pursuant to the permit granted in 1984 . 8 . The Building Inspector for the City of Northampton determined that the time period for construction of the building under the City Zoning Ordinance had passed under the permit that was previously granted and that , therefore , the Plaintiffs would have to reapply for a Law Office Zoning Permit for the building of the construction supply establishment . As a result the Plaintiffs herein filed a T1UCKj.MELN1K new application dated February 20 , 1987 . 110 King Street hampton,MA 01060 413-584-6750 -3- 9 . In a meeting of the Zoning Board of Appeals held on May 6 , 1987 the Zoning Board of Appeals voted to deny the Zoning Finding Request of Eugene A . Tacy for the purpose of constructing a building to be used in conjunction with his existing contractors yard . 10 . The Zoning Board of Appeals further voted that the Special Permit was not applicable and is , therefore , "put aside" . 11 . A true copy of the decision of the Zoning Board of Appeals is attached to this Complaint and marked Exhibit "C" and is made a part hereof . 12 . The Plaintiffs in this action allege that the use of their property for the open storage of raw materials and consLuction equipment is allowed by Special Permit under the Zoning Laws for the City of Northampton as shown on the Table of Use Regulations , Page 5-14 , Number 13 . 13 . The Plaintiffs in this action allege that their property on Main Street , Leeds , (Northampton) , is in a Special Industrial District in the City of Northampton . 14 . The Plaintiffs in this action further allege that the use of their real estate as a construction supply establishment pursuant to the provisions of the Zoning Ordinance of the City of Northampton is allowed by right without need for a Special Permits or Finding on Page 5-12 , Number 3 of the Zoning Ordinances of the City of Northampton . 15 . The Plaintiffs in this action further allege that in the decision of November 28, 1984 the Zoning Board of Appeals allowed the Plaintiffs herein a Special Permit for the use of their property as a open storage of raw materials as allowed under the City Zoning Ordinance . 16 . The Plaintiffs in this action allege that when a use allowed by right is used in conjunction with another use previously approved or allowed by right under the Zoning Ordinances for the City of Northampton no Special Permit or Finding is required . 17 . The Plaintiffs allege that they are entitled to a Building Permit for the purpose of constructing a building as a construction supply establishment under the provisions of the City Zoning Ordinance for the City of Law Office Northampton without need for Finding and Special Permit . 1'R1CKJ.MELN1K 18 . In the alternative the Plaintiffs allege that the 110KIn8Street application for permit they filed in February of 1987 was !iainpton,MA01060 the same as the application that they filed in 1984 and 413-584.6750 -4- that there were no changes in the circumstances relating to this property that would require a different decision than the one that was made in 1984 . 19 . The Plaintiffs in this action allege that the decision of the Zoning Board of Appeals dated May 6, 1987 exceeds the authority of the Zoning Board of Appeals . WHEREFORE, the Plaintiffs in this action demand : 1 . That the Decision of the Zoning Board of Appeals dated May 6, 1987 be annulled and that the case be remanded to the Board of Appeals. 2 . In the alternative , the Plaintiffs in this action demand that this Court issue an injunction ordering the Building Inspector for the City of Northampton to issue them a Permit for the purpose of constructing a construction supply establishment on their premises . 3. Plaintiffs demand such other relief as may be appropriate . May 22 , 1987 /N 2, Yatrick J . N Melnik Esq . 110 King Street Northampton , Ma 01060 584-6750 Law Offiec 1'R1CKJ.MELN1K I10 King Street liampton,MA01060 413-584-6750 * " Do Not Write In These Spaces Application Number: Re«'d. B. Checked Filed Fee Pd. Rec'd. ZBA Map(s) Parcel(s) By Datt: Amt. Date 77 ba-I e APPLICATION lS HEREBY MADE TO THE CITY Or: NORTHAMPTON ZONING BOARD OF APPEALS� 1. Name ofApplicant Eugene A. Iac Maple 158 North Fl M.%Addrnoo 2. Owner of Richard JTacy, Harold C Tacy and Address Main Street - Leeds, Mu ^,=l=`^ N. 'racy 3. Applicant is: [�Ownar; []Contract Purchaser; []Lessee; []Tenan! inPossession. 4. Ap,�'-abonismade for: � 'VARIANCE from the provisions Cf8eotiun_page_________(fthe Zoning Ordinance ofthe City ofNorthampton. XSPEO!ALPERMIT under the provisions cfSection page fthe Zoning Ordinance of the City 0Y Northampton. XOTHER: Finding that alteration of existing use to include construction supply SUT) �a�*sh ent- nQt substantially more detrimental than the existing use the-- f y Main —, being situated on _nt;t- side of Street; and shown' on the Assessors' Maps, 6. Zone I ^ ` 7. Description of proposed work and/or use-, Applicantn supply establishment on a parcel chat is currently being used for open storage of raw materials and construction equipment. The new struccure ma-T-a-Ts—obc used to store construction equipmeitt as well as construction supply equipment. 8. (a) Sketch plan attached; N,Yes ONV (U) Site plan: []AttcheU 02Not Required g Set forth reasons upon which application is based: Current use i that would be allowed— by proposed use is allowed by right (construction SUPI)ly) or by Special Of equipment) . The use will not be more detrimental than existing use and, in fact, will be less det—rimental since the _c_q_uipment currently being stored in the open will be screened by a fence and the building to be const ucted. - permit— was r^e`^~~"lr a^a"`e". This is a request for a renewal of 10. /\Uut\enl (see instructions; list on reverse side of form). with a larger building than pre.- viousIy approved. 12. 1 hereby certify that information contained herein is true toAelest of my knowledge. February 20, 1987 oplicant,q O.;nnitur —D-o' Not Write In These Spaces Application Number: Rec'd. B.1. Checked Filed Fee Pd. Rec'd. ZBA Map(s) Parcells} Uy Dote By Curco Date I-Amt. Date BY pate APPLICATION IS HEREBY MADE TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS: 1. Name of Applicant EUGENE A. TACY Address 158 North Maple Street, Northampton, Massachusetts 2. Owner of Property EUGENE A. TACY,_ JAMES J. TACY, RICHARD J . TACY, HAROLD G. TACY Address Main Street , Leeds , Massachusetts and HELEN N. TACY 3. Applicant Is: ®Owner; MContract Purchaser; CLessee; OTenant In Possession. 4. Application is made for: O VARIANCE from the provislons of Sectlon_page of the Zoning Ordinance of the City of Northampton. MPECIAL PERMIT under the provisions of Sections• 2-13 page-.1,3---of the Zoning Ordinance of the City of Northampton. 250THER. Findinq that a-Iteration of existinc -t use to incl -je construction suppl est hi shw.�!n s,* n2-r sXbstantially more detrirnental than the existing Rider H. 13 fn . Aplpen ix A. 5. t`-Tu%a&n Of property -- ��4 t IQ[4 C;t. �beedaf being situated on the Ea-St .—Bid nir, M Street; and shown on the Assessors' Maps, Sheet No. 1-C L) , Parcel(s) 17 6. Zone Special Industrial 7. Description of proposed work and/or use; Applicant _prnposes to construct a construction supply establishrnent on u parcel that is currently being used for open storage of raw materialsand and c�,nstructiori equipment. wellnew structure /nay also be-used to store construction equipment as well &6con-,;truction supply eq-u-i*p­rn-e-­n7.. 8. (a) Sketch plan attached; E Yes C2 No (b) Site plan: E]Attched IgNot Required 9. Set forth reasons upon which application Is based:_Current use is existina non-conforming use That would be allow,-- by Special Permit under existing zoning, Tne propos d use is alic,,,:ed by riqht (con:§tructicn -su2plV) or by S12ecial P rmit (story qeo.0 equiT)mtnt) . The use will 'riot be, more detrirriental than P-xisting use and in fact will be less detrimental, since the equipmcut. curri-nitrl being stored in the open will be screened by a fence and the building to be 10. Abutters (see Instructions- list on reverse side of form). constructed. 12. lhereby rt1f u tat information uon'tz...,ed c(ein is true to the ig", my kn le ]e. Date September 21 , 1984 Applicant's Signature rig DECISION OF ZONING BOARD OF APPEALS At a meeting held on May 6 , 1987, the Zoning Board of Appeals , in a split decision, voted to deny the Finding request of Eugene A. Tacy, 158 North Maple Street, (Florence) , Northampton for the purpose of constructing a 60 x 601 building to be used in conjunction with the existing contractor ' s yard located on Main Street, Leeds, MA (more particularly identified as Parcel 10D of Sheet 17 of the Northampton Assessors ' Maps ) . Present and voting were: Acting Chairman Peter Laband, William Brandt and M. Sanford Weil, Jr. The findings were as follows: S. Weil stated that he took a site view and spoke with several neighbors. He found that as the site measures 2+ acres and the proposed building will be situated on the rear of the lot directly facing a bridge, that the addition of a 60 x 60 ' ( 23 . 5 ' high) structure on the rear of the lot will not affect the atmosphere of the village, of Leeds . He added that the proposed "park" referred to at the public hearing is, in fact,a narrow strip of land along the bank of the river away from the bridge, which starts 1/4 block beyond this site. He also suggested that as those in power chose to zone this parcel SI, the applicant/owner is entitled to this use. He found in favor of the finding request. W. Brandt found that as the request represents a long- term impact on the conditions of the neighborhood and town, the construction of a 60 x 60 ' building would be substantially more detrimental to this existing residential neighborhood than the existing use. P. Laband found that as this neighborhood is in transition and is in the process of being upgraded, and as this single parcel zoned SI is in the middle of the neighborhood, the expansion of this use with the accompanying increase in noise, heavy truck traffic and activity would be more detrimental to the neighborhood. It was moved, seconded and voted unanimously that a Special Permit is not applicable in this situation and is , therefore, put asidR, following,� ht�,�C�tty_ S3,6li54torIsrovi-nion. See minutes . Peter Laband, Acting Chairman it William Brandt M. Sanford Weil, Jr. A true cop Attest: 71ew + -- 7 Northan Hoed 50 0 Date— s 1ST Nonce 2N� ° °t1C8 Building Inspector for - - the City of Northampton "" 210 Main Street Northampton, Ma 01060 Detached frog» VS Furn.3849—A. 1985 4 Y s '. P 644 1?4 612 ,+ h o?� ✓y-�U Ip DECISION OF C ZONING BOARD OF APPEALS' At a meeting held on November 28, 1984, ' the Zoning Board of Appeals of the City of Northampton voted unanimously to grant the special permit request of Eugene A. Tacy, 158 North Maple Street, Florence, (Northampton) 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. (SI Zone). Present and voting were: Chairman Robert C. Buscher, William Brandt and Peter Laband. The findings were as follows: William Brandt commented that when altering the pre-existing nonconformance, something that is allowed by right now needs a special permit and found that the proposed use is less detrimental than the present use. Iie also found that the building will bear a positive relationship to the public convenience as storing.-.construcpion�-..--• ---� t equipment that is now stored outside will be stored inside a building and be less of an eyesore; that the proposed use will, not cause any undue traffice congestion or impair pedestrian safety;, that it will not overload any municipal systems; and that the proposed use will not impair the character of the district, as a construction supply business is allowed in that zone. % r R. Buscher concurred. P. Laband 'also concurred, stating that all requirements for a special permit have been met. The following conditions shall apply: 1. That fencing along the northerly sideline of the lot be constructed and partial fencing or shrubbery placed along the front of the lot. 2. That the operation of the retail business be restricted to emergency only after 1:00 p.m. Saturday and all of Sunday. . 3. That the business be geared towards general contractors , rattier than the general public. 4. That the building should in no way exceed the height allowed in that zone. Received at City Clerk's Office Rabert C. B Scher, Chai.rma ORTHAMPTO , MASS. p o O I William Brandt Date, lef Z=f Iffij Peter Laband - ,' ��X11 t..,- ;r .•, .;,a`uik,�+:•, CERTIFICATE` OF CITY CLERK �:" ` F October. x;---19$5 I, Adeline Murray, City Clerk of the City of, No.Xtl��Imptpin,, -hereby certify that the above decision of the Northamptin`',Zoning Board 'of Appeals was filed December 13, 1984, that twerity-,days- bave elapse since such filing and that no appeal s been;; fi1,e, in" this ;matte . Attest. t City Clerk, City `bf`;"Noit pton • asp,. �. dJateLL_4�� L 1985 ato'clock and4aL.minutes 2-.M. Recd,ent'd and exam'd. I4AY L ;987 OW NOR�BIHAMV�0 MA,Q1 "" ..