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32A-138 (41) BROWNELL, GLISERMAN, WASHBURN, GERVAIS & KAPLAN ATTORNEYS AT LAW NORTHAMPTONV MA 01060 413-584-7271 WILLIAM H. BROWNELL 11917-1984) TELEFAX 413-586-2156 SAUL GLISERMAN JOSEPH A. NICASTROt TIMOTHY F. WASHBURN LYNN M. TRUSWELL ERIC B. GERVAIS .alsoadmItted n New York DAVID R. KAPLAN' tAm sa"Rted New Wa"P5Nre March 29 , 1989 Mr . Bruce Palmer Building Inspector City of Northampton Municipal Office Building Northampton, MA 01060 Re : Complaint of Nohominium le alty Trust Against 21-31 Main Street Associates Dear Mr . Palmer : This office represents the Complainant, Nohominium Realty Trust, the owner of condominium units III , IV and V of the 21-31 Main Street Condominium, having a street address of 23 Main Street, Northampton. The spaces owned by the Complainant contain presently, Fitzwilly 's Restaurant and Pop 's Package Store. Filed earlier was a formal Complaint setting forth the sections of the Zoning Ordinance with respect to which the violations are alleged, and this letter is an attempt to provide you with some additional background and information concerning the alleged violations. By deed dated December 29 , 1986 , Roger W. Kirkwood conveyed to the partners of 21-31 Main Street Associates the real estate which is the subject of the Complaint. A copy of the deed is attached hereto as Exhibit A. As you will see, the property is described as consisting of two parcels. Parcel 1 referred to in the deed is the parking lot adjacent to the railroad tracks, and Parcel 2 is the location of the building in which Fitzwilly 's is located and the vacant land used for parking in the back. The deed is recorded in Hampshire County Registry of Deeds Book 2882, Page 209 . Subsequently, as the Owner of the real estate, 21-31 Main Street Associates caused a survey to be made by Almer Huntley, Jr. & Associates. On the basis of the survey a plan was prepared dated February 6 , 1987 , and was recorded in the Hampshire County Registry of Deeds at Plan Book 145 , Page 50 . In order to have a description that conformed to this new survey and plan, rather than the old description , 21- 31 Main Street Associates caused a conveyance to be made to a straw by deed Mr . Bruce Palmer March 29 , 1989 Page Two dated April 10 , 1987 , recorded in the Hampshire County Registry of Deeds Book 2950 , Page 24 . Immediately following, the straw, one Jonathan J. Einhorn, reconveyed the property to 21-31 Main Street Associates by deed dated April 10 , 1987, recorded in Hampshire County Registry of Deeds Book 2950 , Page 28 . There was no consideration for either conveyance and it appears that the sole purpose was to enable 21-31 Main Street Associates to have a deed into that entity which reflected the results of the survey done by Huntley. The deeds contain a similar designation of Parcel 1 and Parcel 2 consistent with Huntley 's Plan, the only difference being that the description was now in metes and bounds. A copy of the deed from Einhorn to 21-31 Main Street Associates is attached hereto as Exhibit B. In August, 1987 , 21-31 Main Street Associates had Huntley prepare a revised version of the earlier February, 1987 Plan. The only difference between the plans is that while the earlier plan showed Parcel 2 to be a single undivided lot, the subsequent plan showed Lot 2A in the front portion on Main Street with 14 ,103 square feet, and Parcel 2B in the back containing 6 ,643 square feet. The earlier plan showed Parcel 2 only, containing 20 ,746 square feet. The later Plan was stamped approval not required by the Planning Board and bears the signature of Marion Mendelson as one of the members of the Board . The Plan was recorded on December 24 , 1987 at Plan Book 151 , Page 74 . Although the Planning Board put its "approval not required" seal on it, it also stamped on Parcel 1 (the side parking lot) the following notation: "The Planning Board has made no determination as to the conformance of this Lot with the provisions of the Zoning Ordinance". On December 31, 1987 , 21-31 Main Street Associates caused to be recorded with the Hampshire County Registry of Deeds a Master Deed and a Declaration of Trust for 21-31 Main Street Condominium. The Master Deed is recorded at Book 3113 , Page 173 and the Declaration of Trust follows immediately. Both the Deed and the Trust are dated November 25 , 1987 . The purpose of these documents was to submit a certain portion of the land and all of the building owned by 21-31 Main Street Associates to Chapter 183A of the General Laws of Massachusetts and thereby create a Condominium. The portion of the land which was submitted to the Condominium Statute consisted of Parcel 2A as shown on Huntley 's later Plan, which contains 14 ,103 square feet out of the original total of 20 ,746 square feet. Section 4 .2 of Article IV of the Zoning Ordinance states that, except as otherwise provided "any existing non-conforming use , structure or lot will not become further non-conforming , " Exhibit 2 to the Master Deed of 21-31 Main Condominium recites that the existing brick and masonry building contains Mr. Bruce Palmer March 29 , 1989 Page Three approximately 55 ,042 square feet. The subject property is located in a Central Business District, and under Article VI , Section 6 .2 , the Table of Dimensional and Density Regulations, the maximum of floor area ratio is 2 .0 . Accordingly, the building was already non-conforming by reason of its failure to comply with the maximum floor area ratio, even if one were to include the parcel containing 5 ,673 square feet owned by 21-31 Main Street Associates on the other side of Merrick Lane (Parcel 1 in the Plans) . By virtue of the condominiumization the building became more non-conforming by reason of having had the maximum floor area ratio increase over that which existed previously. Further , both Section 6 .3 , Reduction of Lot Areas, and Section 6 .4 , Separation of Lots, would seem to have been violated. Even prior to the revision of November 3 , 1988, Section 6 .4 prohibited the division of lots so as to become non- conforming with the other provision of the Ordinance. More specifically "No group of lots in a common ownership may be separated or the ownership of one or more lots changed (other than the entire group when sold as a single parcel) so as not to be in conformance with a provision of this Ordinance. " For many years prior to the acquisition of the subject property by 21-31 Main Street Associates, and until very recently, parking was provided on both the lot to the rear of the building, designated as Parcel 2B on the latest Huntley plan, as well as on Parcel 1 to the northeast of the building near the railroad property. Although certain spaces were reserved for owners and/or tenants of the building , spaces were available for members of the public who were patronizing the businesses on the ground floor or the offices on the upper floors. Almost all of the available spaces were open to the general public during evening hairs. Within the last two or three weeks, 21-31 Main Street Associates has notified the Complainant as well as the other tenants of the building that, henceforth, there would be no parking permitted in either of the lots except to those people who might care to rent parking spaces on a monthly basis at a rate of between $50 .00 and $75 .00 per space per month. A local tow truck operator has been given a contract for towing and the lot is patrolled constantly during each 24 hour period . Any vehicle not having a sticker indicating that it is entitled to park there on a monthly permit basis is towed away. Among those whose vehicles have been towed have been numerous patrons of Fitzwilly 's restaurant, which is a tenant of the Complainant. The table of off-street parking regulations contained in Section 8 .1 of Article VIII of the Ordinance requires one space per 500 square feet for commercial, retail and personal service establishments in the Central Business District, and one parking space for each 4 seats of total seating capacity plus 1 for each 500 square feet of gross kitchen area for a sit-down restaurant Mr. Bruce Palmer March 29 , 1989 Page Four in a Central Business District. Fitzwilly 's restaurant alone, with 175 seats, would require approximately 44 parking spaces, without including gross kitchen area. Clearly, the number of spaces that had been provided up to now amounted to far fewer than would be required if we were dealing with a new structure. Section 8.1 does provide that no additional off-street parking is required in the Central Business District for the continued use or re-use of existing buildings, but Section 8 . 3 makes it abundantly clear that "parking or loading spaces being maintained in any district in connection with any use on the effective date of this ordinance or any spaces subsequently provided in accordance with this ordinance shall not be decreased or in any way removed from service to the use originally intended to be served, so long as said use remains, unless a number of parking or loading spaces constructed elsewhere , such that the total number of spaces conform to the requirements of the Tables of this Article " Further, Section 8 .7 provides in part that "required off-street parking spaces shall be provided on the sane lot as the principal use they are required to serve. " In addition, if the land areas in question are now being converted to a commercial parking lot for monthly payers, Section 8 .10 of the Ordinance imposes a number of requirements for parking lots, most of which have not been complied with in this case. There is an additional violation pertaining to parking, but it is not a zoning issue. Under section 13A of Chapter 22 of the General Laws of Massachusetts, the Architectural Access Board is required to issue regulations designed to make public buildings accessible to the handicapped. Any person who has lawful control of private property used as off-street parking areas for businesses where the public has a right of access as invitees or licensees shall reserve parking areas for vehicles of handicapped persons if the number of parking spaces in the area exceeds 15. The Regulations issued, 321CMR, sections 23 .1 and following , require a certain number of handicapped spaces based on the total spaces available. If the lot or lots in question have a total of 41-100 spaces the number required is 4% of the total but not less than 3 . Since the previously provided spaces for the handicapped are no longer available to the public, this Regulation has been violated as well. Section 9 .2 of Article IX of the Ordinance recites that it applies to any change of a use. It is the Complainant ' s view that providing the parking spaces required by Article VIII of the Ordinance is a very different use than operating the property as a commercial parking lot , which is its present use . Consequently, there would seem to be a clear violation of Section 9.2 . There are a number of additional violations under Article X. Section 10 .2 requires the issuance of a Zoning Permit if an owner Mr. Bruce Palmer March 29 , 1989 Page Five is going to change the use or lot coverage, or displace the use of a lot, without applying for or receiving from the Building Inspector a Zoning Permit. Under Section 10 .4 it is unlawful to use a lot which has been altered unless there has been a Certificate of Use and Occupancy issued by the Building Inspector . Section 10 . 11 deals with the site plan review/approval process. Under subsection 2 , the definitional section, a commercial parking lot is a major project, and the requirements set forth in subsection 3 are superimposed over any other requirements of the Zoning Ordinance. It is emphatically set forth that the building inspector may not issue any building permit for a major project until the site plan has been approved, or deemed approved, by the appropriate authority. Based upon all of the foregoing , the Complainant is ✓ equesting that the building inspector serve a Notice of Violation and Order to 21-31 Main Street Associates, as the owner or person responsible for the change in use which has created the problems enumerated in this letter . The Order should direct the d iscontinuance of the various unlawful actions which have occurred forthwith, and further, should require that the owner, u ntil such time as these issues may be resolved either by settlement or by a court of competent jurisdiction, should reopen the parking to those members of the public who are patronizing the restaurant or retail stores located on the ground floor of the building , as well as those who must gain access to the upper floors of the building to conduct their business or other affairs. The requirement to provide parking spaces in the central business district as set forth in Article VIII of the Ordinance is a rational and appropriate response to the problems of any downtown business area . Although the owners of the property have indicated to the management of Fitzwilly 's that they are prepared to lease most of the parking lot to the restaurant for at least $2,000 .00 per month , that is not a methcd by which parking spaces are supposed to be provided in accordance with the Ordinance. In any event, you may be assured of the cooperation of both this office and the Complainant for purposes of pursuing this matter , and if you require any additional information or documentation, please feel free to call on me. Ver tru ours, Saul Gliserman SG/cp Palmer. let B I- (132.152 SE: BOO 2882PC(0209 ButK i [NOW ALL MN tY NESS PURISTS NAT 1, N _ Cfl V. Klai000 of 564 Malley Avelia, Nee Raved, Connecticut 6mpt8ytradmto4 is omuldentea of NO MILLION and 007100 ($2,000.60.00) 1201/461 gnat to Daniel M. Millie/.. Richard T. Sesttaed, Willis. Disease and J.P. Wyse, Inc., co-partnere do.ng tains a. 21-31 Main Street Associates vtth a principal office et 613 Orange Street. New Haas, CT I' with marrinig roormante the land in Northampton, Hampshire County. Maseachaetre> being described in two (2) parcels as follows: PARCEL I All that lot of land in Northampton, Hampshire County, Manacbaatte, whereon the brick store orSullivanwarehouse formerly owned and occupied by John A. Sullivstood and sms situated insaid Northmptoa. and bounded SOUTIEKLY on Main Street EASTERLY on land of the New Haven and Northam;non Coeaany, now leased to the New York. New Haven and Hertford Railroad Company and WESTERLY on a street or passageway between the m.t.te of John A. Sullivan and the Clark Homestead. and NORTHERLY on land of said New Hoven and Northampton Company. The said lot extends one hundred and forty-four and one-half (144.10 feet, more or lees, In depth fro* said Main Street. TAls property is subject to an easement from Abraham R. Catodoy et nu. to the City of Northampton, dated June 22, .943. and recorded is the Hampshire County Registry of Deeds, Book 991, Page 462. }i( Being the same prenbo described in deed of Pleasant Market, Inc. to pager V. Ki rwaad, dated November 3, 1980, and recorded to the Hampshire County Registry ofDeeds, Book 2194, Page 119. PARCEL It Ht That certain tract or parcel of lend with the buildings thereon, situated on the tII Northwesterly side of Main Street, in Northampton. County of Hampshire, Commonwealth of Massachusetts. containing seventy-five OS) square rods. more or less, and bounds and described as follow.: Rounded SOUTHEASTERLY about one hundred twenty-three (123) feet by said Main Street; NORTHEASTERLY about two hundred one and one-half (2011) feet by it palmateway; NORTHWESTERLY about eighty-aim (86) feet by a way leading from King Street to the old freight house of the Nev Haven and Northampton Company: and SOUTNEBTTRLY about one hundred ninety-nine and one-third (199-1/3) feet, in part by • driveway adjolnin land now or formerly of 0. 0. Roberts and in part by land now or formerly of .lohn T. Dewey. Together with the benefit's and et jest to the burdens of it party wall agreement as set forth in an instrument retarded in Hampshire County Registry of tends at Book 481. Page 13$, and also a suppl'=mental agreement recorded in said Registry at Book 493, Page 184. Being the same premises described in . deed from Nin Realty. Int. to Roger V. tired d dated November 14, 1973 and recorded in said Kapshine County Registry of Stade at Book 1659, Page 269. The parcels above ate conveyed subject to real estate tales for fiscal year 1967 vhici, the grantor herein seem* and tire, to pay. SUBJICT to en easement end right of way greeted to the inhabitants of the County of Hampshire by instrument dated April S. 1983 and recorded to Hampshire County eaglet of Deeds in gook 2143. Pigs 53 and the subsequent taking of 'Herrick Lanew by the City of Northampton es set forth /a ea instrument rscorded is said Legistry in look 2458. Page 333 and as shows in Pian look 127. Page 714 continued as neat page Id __ 1 - f ! - ;f — r —T ----- tat 2882 PAM I➢ 'OBJECT Y • eertpte Y naC.•rtrt fa theoriginal. prixipal mune of I -y laB0,000 laced Ray 19, 19Bf. recorded L the Amoebic* Come] Ygtatq of Deeds ii Ga Boot 2722, Pep 254.!MULC f to • mortgage to Pioneer National Beet1. ln Y the original principal amount of 0229.000 dated July 1. 1981, recorded L the papenln CPS ty Ytlett7 of Deeds. Boca 2233. Pap 49. SONSCT to • lease to Joatue'e, Inc. d/b/a Pitevllly. entice of said lea - - tieing dated November 9, 1951, recorded 1a the lmstite County Registry of dada Boot 2254, Pap 82. SUBJECT to a UCC Financing Statement from Joshua's corpntioe to Citytrcet as cured party, said statement dated Joao ❑. 1953, recorded in the Hampshire Co, ty Registry of Deeds, look 2577, Page 124 I • . !` • ;II y 1 • i t LI s^ L f • • I I ..._. _ _a:. - I 2 I p- Raaf 2882 to 0211 • G gWEPIMe�f MPSSAClliS•E ' GOMMO,•J^ Ot MPSSPCtr A l it uI I:u .t _oa_=gym \, -afi0Q00 - el � gg0.„. IX[i M a ... -g a r0 a.-...-•••• COMMGtAWFPITH OT MASSACYUSrTTS ,1� lll : CY , ti'A( L.; g990.00a •g a -.F— DU" F,. =99 006 .. aa7.. Vila'' .vv01:vIEM.Th Or MASSACYUET SS _ Executed u t sealed increment this day . December .• e If 1986 our V. Vlevood • ... OballomEORRURVE d IBRHtEtha4[tt; 0upden et h , .. nk ( • r,e7TM,Rmne11Y Unused am thou aMinedYu Mined Roger V. rvooa i A• .. 0' sem• J. ~• and _ r1. helm r 9d ledged the foregoing instrument lobe hie het enc uJ�ad, •. y.`.�/r t Robert P. Cunningham ,.../, ' was,n,w 1-4._learn Ml aommudoa*lin. September t8e 1089 ire th-4419eer 9 on ad4.Lmimrtn$M.Rdd.etd tad ,swim an) with Hampshire Res d Deeds. mr .1901 v0gea Attest fauna • l I , :- .1,k-k- IBI1 tcf , P _ ,00E2950III cO28 005439 . a I, JONATHAN J. EINHORN . of 412 Orange Strut, New Nevem, Connecticut 06511 Ite1RNe W1YfYMaN u conddr ma* of NO MONETARY CONSIDERATIONS pun b 21-31 MAIN STREET ASSOCIATES a 14aaalehusetta Canerat Eartaa table M 413 Orange Street, New Haven, Connecticut 06511 z mHR quitclaim remnants y , Z M mm in e .t i FOR DESCRIPTION SEE mah 4 EXHIBIT "A" ATTACHED HERETO AND MADE A 1 I PART HEREOF 1 iS c yr rtrf iii IN 1 I QEt urw.Nd mammas 10th �y`I� IS 87. �� f r> 1. t(a th ....' an*• Jo athan . Einhorn I1 Ruben P C.nn.n. / i A . 1 I 3 I1 xdyvtsmemdyitAPaaRRynd • - ISTATE OF CONNECTICUT) ) •• Meet Hartford April 10 19 Si _ COUNTY or HARTFORD ) T Inc. pmimlly mPnN rn, ,Mn na'S JONATHAN J. EINHORN • I • t"a ..nw.Hapd �k m'.w."r mwrwn r.r hie�-` r w dna. 4.1 &fin"v.__11 (n r 'iL n $ ieLt-A^t. �.$ j)pnnA L. DoitR, AM: t Mt cn. niws nru° 1 N 1611111.11111 I Inisholo bale Wm MI. I tl i I. _e. x i I , i . M 2950 121CO20 A certain tract of land with the buildings thereon, situated on ) 1 the northwesterly side of Main Street in the City of Northampton. i Hampshire County. Massachusetts, being described in two parcels as shown on a plan entitled 'Land in Northampton, Massachusetts, 'T. 4 surveyed for 21-31 Main Street Associates' dated Pebivary 6. 1987, • prepared by Almer Huntley, Jr. 4 Associates, Inc., and recorded in ' the Hampshire County Registry of Deeds in Plan Book /Yet , / •y1 jPage fa A being bounded end described as follows yk ' PARCEL I fj s a2} SOUTHEASTERLY by Main Street, an shown on said plan, a distance of forty and No/100 (40.00) feet 1 NORTHEASTERLY by land now or formerly of the Massachusetts Electric Company, as shown on said plan, a distance of one hundred thirty-nine and 67/100 (139.67) feet; NORTHWESTERLY by land now or formerly of Gail Clare Collins, as shown on said plan, a distance of forty and NO/100 (40.001 feet; and y SOUTHWESTERLY by Merrick Lane, as shown on said plan, a distance of -$ one hundredflorty-four and 90/100 (144.90) feet. y* CONTAINING 5,673 square feet of land, more or leu. PARCEL 11 1 SOUTHEASTERLY by Main Street, as shown on said plan, a distance of one hundred twenty-three and 38/100 023.30 feet; ( NORTHEASTERLY by Merrick Lane, ae shown on said plan, a distance of • • i- - two hundred two and 46/100 (202.46) feet; NORTHWESTERLY by Merrick Lane, as shown on said plan, a distance of ( • eighty-three and 60/100 (83.60) feet; • SOUTHWESTERLY by Bank Avenue, as shown on said plan. a distance of _.. ninety-seven and 64/100 (97.64) feet; and i SOUTHWESTERLY by lest named land and along land now or formerly of James O. Raymond et 41., as shown on said pian, a distance of ons III? - . hundred two and 37/100 (102.37) feet. CONTAINING 20,746 square feet of land, more or leu. The above property is subject to the following; . TOGETHER with the benefits and subject to the burdens of a party { wall agreement as ret forth in an instrusent recorded in Hampshire 1{ • , 1 1 t e i it atm J50 ro� County Registry of Deeds in Book 487, Page 125, end in Book 492, i i Page 184. SUBJECT to an easement and right of way granted to the inhabitants p V �' � i of the County of Hampshire by instrument dated April 5, 1983, and i }t- '' recorded In Hampshire County Registry of Deed* in Book 2342, PageI �3 { 53, and the subsequent taking of 'Merrick Lana' by the City of +ief a Northampton as sat forth in instrument recorded at aforesaid in Book I 2458, Page 335, and as shown on Plan Book 127, Page 72. i \, iSUBJECT to an easement from Abraham B. Colodny et us., to the City 1 of Northampton, dated June 22, 1945, and recorded as aforesaid in 1 Book 991, Page 482. SonJECT to utility and drainage easements as shown on a plan entitled "Land in Northampton, Massachusetts surveyed for 21-31 Main } Street Associates" dated February 6, 1987, prepared by Alter pa Huntley, Jr. 4 Associates, Inc. recorded herewith as set forth above. C! SUBJECT to restrictions and encumbrances of record. .t SUBJECT to real estate taxes for the fiscal year 1987, and 5 subsequent years which the grantee heiein assumes end agrees to pay. - 1 1 e MEANING and INTENDING to convey all the property acquired from DANIEL M. MIGLIORE ET ALS., d/b/a 21-31 MAIN STREET ASSOCIATES as ! e sat forth in a deed recorded as aforesaid immediately prior hereto. 4,...1 ij I7 .. 2b . _ , H.- .. Al l . A:., ' 02701 f `