06-022 (8) 2. t- ConA
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DECISION OF
ZInIIN(i BOARS OF APPEALS
The Northampton Zoning Board of Appeals of the City of Northampton met-
on
eton February 27, 1985 and voted unanimously to amend the Special Permit
granted to San-land Corp. , et.al. , which was filed in the Office of the
City. Clerk on July 12„ 1972. Present and voting were: Chairman Robert C. '
Buscher', William Brandt and Charles Maguire.
Condition 41 shall read as follows:
1. The proposed complex shall have at least 3,000 square
• feet of land area for each dwelling unit.
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Hobert C. Buscher, Charrman ,
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William Brandt
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C.arles Maguir.' r
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Northampton Zonong Board of Appeals
Modification of Permit - San-Land Development Corp.
February 27, 1985
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the Northampton Zoning Board of Appeals met on February 27, 1985 at 7:40 p.m.
in Council Chambers, Wallace J. Puchalski Municipal Building for the purpose of acting
on a judgment from Superior Court regarding San-Land Corp. from 1972.
He explained that San-Land applied for a Special Permit to construct a number of
apartments on Evergreen Road, Leeds and that none of the Board members who sat on the
case are members of the present Board. The Chairman stated that the Court remanded tha
the current ZBA revise the decision to read 3,000 sq. ft of land area required for each
dwelling unit rather than 5,000 sq. ft. as stated in the Decision.
It was moved, seconded and voted unanimously to amend the Decision.
(--''
Robert C. Buscher, Chairman
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15005
A TRU! •
AFlt si COMMONWEALTH OF MASSACHUSETTS
r .
`7,?: - •Hampshire,'S?. Superior Coufrt
Civil Action
NEIL R. 'dAitSOie4 SINARSAMSON,JOHN J.
ROCKETT, JR. , LINDA ROCKETT, EDWARD J.)
DUGGAN, ELIZABETH DUGGAN, RICHARD
MILLER, JEAN MILLER, HELEN J. TUFTS
and THOMAS J. TESSIER
Plaintiff (s)
v. JUDGMENT AFTER RESCRIPT
STAN-LAND DEVELOPMENT CORPORATION, (Pursuant to Mass .R.A.P. 28)
JOHN F. SKIBISKI, JR. , JANET M SKIBISK ,
and CHARLES W. DRAGON, EDWARD E. KEEFE
'-CTL T.. CLARK and ROGER K. SLAWSON,as
tney ccJnstit,.tc iIL BOAT'.:- OF APPEALS
OF THE CITY OF NORTHAMPTendant(s) ���
This action was, appealed to. the - Appeals Court - nmac 4
the issues having been duly heard and the
,. _: . _AP2e@ls. . . . .. . .. Court -having duly issued a rescript, it
is ordered and adjudged: • •
Judgment is hereby entered- remanding the case to the Board of Appeals
with instructions to modify the permit previously granted to the
applicants by reducing the density requirement set forth in that
permit from 5000 square feet per unit to 3000 square feet per unit.
Neither party is to have the costs of this appeal .
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Dated at Northampton, Massachusetts, this seventh day
of March , 1964 •
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/ •IA
( Man Clerk , •
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Form Civ.P. 61 •
15005if
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% g on
IGS T:
okl. _ntnCOMMONWEALTH OF MASSACHUSETTS.
APPEALS COURT FOR THE COMMONWEALTH,
AT BosToN, January 19, 1934 .
IR THE CASE OF
NEAL R. SAMSON & others
vs.
SAN-LAND DEVELOPMENT CORPORATION & others
pending in the SUPERIOR +.
Court for the County of HAMPSHIRE
ORDERED, that the following entry be made in the docket; viz.,—
Judgment affirmed.
IRE SS
suPt ' IOW COURT I
FILED
MAR 7 1984
BY T86 COURT,
January 19, 1984
OVER
BRIEF STATEMENT OF THE GROUNDS AND REASONS OF THE DECISION:
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This is an appeal by the plaintiffs from a judgment entered
in the Superior Court affirming a decision of the board of
appeals of Northampton (board) , which granted to the defendant
San-Land Development Corporation (San-Land) a permit to build
multifamily housing on its property in Northampton. We summarize
the facts which are not disputed.
On January 26, 1972, San-Land filed a perimeter plan with
the planning board and obtained its stamp indicating that sub-
division
approval was not required. See G.L. c. 41, $ 81P. San-
Land then filed an application with the board to build forty-nine
unit■ of multifamily housing on its land in Northampton. At the
time of the application the locus was zoned Residence B, which
permitted the construction of multifamily housing, subject to
certain conditions. One of the conditions required that a permit JJj
be obtained from the board. Because the ordinance did not define
the use of the land for multifamily housing as an "exception,"
the required permit,was not a "special• permit. The ordinance
did not give the board discretion to grant or deny the permit; i
the applicant met the conditions, the permit had to be granted. et
After a public hearing, the board granted the permit to San-Land.
The plaintiffs, who were abutters, appealed to a District Court.
That court upheld the board's decision with one modification.
The plaintiffs appealed to the Superior Court in June, 1973, and
the case was referred to a master. In 1975, while the case was
pending in the Superior Court, Northampton adopted a new zoning
ordinance. The ordinance changed the zoning for the district
where San-Land'■ property was located and specifically prohibited
multifamily housing without a special permit. After the adoption
.Deane Samson, John J. Rockett, Jr. , Linda Rockett, Edward
J. Duggan. Elizabeth Duggan, Richard Miller, Jean Miller, Helen
J. Tufts, and Thomas J. Tessier.
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The board of appeals of Northampton.
The other conditions in the ordinance referred to
questions of building height, occupancy, density, setbacks,
apartment size, offatreet parking, and the like.
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t the zoning ordinance and both before and after the master's
. nearing, the plaintiffs filed motions for summary judgment on the
ground that the adoption of the ordinance during the pendency of
the case made the action moot and required that it be remanded to
the board for further hearings. The motions were denied. O
After the master's report was filed and various motions
concerning it were heard by the judge, judgment was entered
affirming the decision of the board as modified by the District
Court.
1. The plaintiffs contend that the adoption of a new zoning
ordinance while litigation is pending over a zoning permit issued
under the prior ordinance requires that the case be dismissed as
moot. Their argument is without merit. San-Land filed a
perimeter plan with the planning board and received its
endorsement that approval under the subdivision control law was
not required. See G. L. c. 41, S 81P. In that situation G. L.
c. 40A, S 6, sixth par. , provides for a zoning freeze period of
three years, running from the date of the endorsement of the
plan. Falcone v. Zoning Bd. of Appeals of Brockton, 7 Mass.
App. Ct. 710, 712 (1979) . Its predecessor statute, G. L. c. 40A,
S 7A, second par. , as in effect prior to St. 1975, c. 808, S 3,
provided the same protection. Cape Ann Land Dev. Corp. v. Board
of Appeals of Gloucester, 371 Mass. 19, 21-23 (1976) . During the
zoning freeze period the use of the land is governed by the
applicable provisions of zoning ordinances or by-laws in effect Ii
at the time the plan was submitted." Falcone v. Zoning Bd. of
Appeals, supra. The plaintiffs commenced litigation during the
freeze period in an attempt to overturn the board's decision to
issue a permit to San-Land. The litigation suspended the running
of the three-year period in the circumstances of this case. See
Cape Ann Land Dev. Corp. v. Board of Appeals of Gloucester,
supra at 23; M. DeMatteo Constr. Co. v. Board of Appeals of
Hingham, 3 Mass. App. Ct. 446, 461-462 (1975) , as to discussions
of this point in regard to the similar provisions of the earlier
statute, G. L. c. 40A, S 7A. See also Smith v. Building Commr.
of Brookline, 367 Mass. 765, 773-775 (1975) , in regard to G. L.
C7-7117;71-11, as in effect prior to St. 1975, c. 808, S 3. For
the present law see G. L. c. 40A, 5 6, eighth par. , as
appearing in St. 1975, C. 808, S 3, which specifically provides
that any appeal or any litigation extends 'the exemptive
provisions . for a period equal to that from the date of
filing of said appeal or the commencement of litigation,
whichever is earlier, to the date of final disposition thereof, ti
provided final adjudication is in favor of the owner of said
lot.' •
2, The plaintiffs' argument that the new zoning ordinance
applies 'to some extent' and that further hearings must be held •,ij
by the board is also without merit. The statutory protection I.
extends to 'the elimination of or reduction in the kind of uses
which were permitted when the plan was submitted to the planning
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board.' Perry v. Building Inspector of Nantucket, 4 Mass. App.
Ct. 467, 471 (1976) , quoting from Bellows Farms, Inc. v. Building
Inspector of Acton, 364 Mass. 253, 260 (1973) . Here, the use
(multifamily housing) was completely eliminated by the new zoning 0
ordinance. Thus, the statutory protection extends to San-Land,
and it is not required to seek a special permit.
3. The plaintiffs contend that San-Land is not entitled to
any statutory protection because it did not 'actively pursue the
litigation.' The judge's findings and conclusions" make no
reference to any such claim, and nothing in this record indicates
that it was raised below. We, therefore, will not consider it on
appeal. Royal dndem. Co. v. Blakely, 372 Mass. 86 , 88 (1977) .
We add that it was the plaintiffs who brought this litigation,
not San-Land, and there is nothing in the docket that
demonstrates that -the plaintiffs tried to speed up the process,
nor does the docket show that San-Land tried to obstruct the
litigation by dilatory tactics.
Judgment affirmed.
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11 �f /p,/Cfus 3�is��79� UECISICN
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This is the decision of the Board of Appeals of the City of
Northampton on a petition for a permit by San-Land Development
Corporation, West Hartford, Connecticut, under the provisions of
Section 12, paragraph (f) of Chapter 44 of the City Ordinances of
the City of Northampton, for the purpose of CONSTRUCTING A GARDEN
APARTMENT COMPLEX IN A RESIDENCE (B) ZONE.
Chairman, Charles W. Dragon presided, with members Edward
E. Keefe and Cecil I. Clark also sitting.
The parcel of land is situated on the Northerly side of
Evergreen Road and is 142.5 feet distant from the corner of
Leonard Street. It is proposed to construct 3 buildings contain-
ing a total of 49 units. The parcel of land is located in a
R• esidence (B) Zone.. The dimensions of the parcel of land are
shown on a plan entitled, •Preliminary Site Plan Showing Proposed
A• partments in Northampton, Mass., Prepared for John Skibiski" ,
d• ated February 28, 1972 and are on file with the petition in the
H office of the Board of Appeals of the City of Northampton. This
site plan was filed with said Board of Appeals at the time of the
filing of the petition by the petitioner, San-Land Development
Corporation.
This matter was duly advertised on May 9, 1972 and May 16,
.1972 and came on for hearing before us on May 30, 1972; at which
time the petitioner, represented by counsel, was present as well
as objectors. After due hearing we unanimously vote to grant the
petitioners the permit under the provisions of Revised Ordinances
of the City of Northampton Chapter 44, Section 12, paragraph (f) ;
and hereby authorize the construction of 3 apartment buildings as
,outlined in the aforementioned petition and plan, subject, '
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'however, to the following conditions:
1. The proposed complex shall have at least 5000 square
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feet of land area for each dwelling unit, in con-
formity with recent ammendmente to the Zoning
Ordinance.
2. Provisions for sewerage, ingress and egress shall
be approved by the City Engineer of Northampton.
3. Satisfactory provisions for drainage and dispersal
of surface water shall be provided by the petitioner,
after approval by the City Engineer of Northampton.
I( We find the conditions set forth in the City Ordinances of
the City of Northampton, Chapter 44,' Section 12, paragraph (f)
1 through 7 have been satisfied.
We further find that the conditions set forth above make it
, appropriate to grant this permit and will allow the land to be
used in compliance with recent density requirements established
' by the City Council.
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