25-001R Erection of permanent structures in Flood Plain- Special Conservatory District Strickland So. Deerfield March 22 2001(rik of Nort4uniptan
Jlaassaachnsetts
DEPARTMENT OF BUILDING INSPECTIONS
INSPECTOR 212 Main Street • Municipal Building
Northampton, MA 01060
March 22, 2001
David Strickland
109 Plain Rd.
South Deerfield, MA 0 13 73 -973 7
Subject: Erection of permanent structures in Flood Plain — Special Conservatory District
Dear Mr. Strickland,
I made a site visit to Northampton Airport on March 19, 2001 to view the possible impact
from spring flooding.
I found there are several violations of Northampton Zoning for erecting permanent
structures within SC district without proper permits. The structures are being used for
your business Airborne Skydiving I reviewed the files in the Office of Planning and
Development as well as the Building Department and found no permits for the permanent
structures that you have erected. The structures are as follows:
a. Three trailers no plates that have been placed on blocks.
b. Deck approx 10 x 10 built and attached to one of trailers.
c. Two decks approx 6x6 built and attached to remaining two trailers.
Northampton Zoning ordinances table of use 5.2 states that in a Special Conservatory
District a permit from the Conservation Commission and a building permit is required for
the erection of a permanent structure. I have reviewed the files in the Planning
Department as well as the Building Department and found no permits for the structures
(copies of photos attached).
You have 30 days in which to remove the structures trailers and decks. If you wish
to place trailers on the site for classes the trailers must be registered and mobile
otherwise building permits and permit from the Conservation Commission are
required. You could face fines of up to $100 per day for each day violation continues
and or court action if you fail to act.
If you have any questions please feel free to contact- me at 587-1240.
Sincerely
Anthony Patillo
Building Commissioner
City of Northampton
CC: D. Guisto- Northampton Airport, Councilor Tymoczko , Planning Department
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OCAJ6-mtc00"191 CLERK MAGISTRATE'S COPY
Trial Court of Massair!'•usetts
CIVIL ACTION COVER SHEEN
SUPERIOR COURT DEPARTMCIV,
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OCAJ6-mtc00"191 CLERK MAGISTRATE'S COPY
THE COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
HAMPSHIRE, ss. Civil No. 9 g — 213
NORTHAMPTON AIRPORT, Inc.,
Plaintiff,
v.
ZONING BOARD OF APPEALS
OF THE CITY OF NORTHAMPTON,
and its members
MARK NEJAME,
RICHARD GHISELIN,
LARRY SNYDER; and
ANTHONY PATILLO,
Building Commissioner of the City of Northampton,
Defendants
NOTICE OF ACTION
Pursuant to M.G.L. c. 40A, sec. 17, Plaintiff Northampton Airport, Inc.
hereby provides notice that an action has been commenced appealing the decision
of the Zoning Board of Appeals denying Plaintiff "grandfather" or nonconforming
use status of its property situs, by the attached Complaint.
THE PLAINTIFF
By:
Leon W. Malinofsky, Jr.
Its Attorney
182 Main Street
Northampton, MA 01060
(413) 584-7950
BBO #315740
4 August, 1998
THE COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
HAMPSHIRE, ss.
NORTHAMPTON AIRPORT, Inc.,
Plaintiff,
v.
ZONING BOARD OF APPEALS
OF THE CITY OF NORTHAMPTON,
and its members
MARK NEJAME,
RICHARD GHISELIN,
LARRY SNYDER; and
ANTHONY PATILLO,
Building Commissioner of the City of Northampton,
Defendants
Civil No. C1 g »213
AFFIDAVIT OF FILING
AND SERVICE
Then personally appeared Leon W. Malinofsky, Jr. and on oath duly sworn, stated:
1. I am an attorney admitted to practice in the courts of the Commonwealth
and maintain an office at 182 Main Street, Northampton, MA 01060.
2. That on Tuesday, August 4, 1998 I filed with this Court the Complaint
attached hereto as "Attachment A" to this affidavit, and gave notice of this action to
the City Clerk by delivering a copy of the Complaint and a copy of the Notice of
Action, the original of which is attached hereto as "Attachment B" to this affidavit;
and
3. That on Tuesday, August 4, 1998 I caused to be served by certified mail
to each of the following named Defendants at the address here stated a copy of the
Summons and Complaint with its attachments:
Zoning Board of Appeals of the City
of Northampton, c/o City Clerk
Christine Skorupski, City Hall,
Main Street
Northampton, MA 01060;
Mark Nejame
47 High Street
Florence, MA 01062
Alex Ghiselin
164 Riverside Drive
Northampton, MA 01062
Larry Snyder
196 Overlook Drive
Florence, MA 01062
Anthony Patillo
14 Autumn Drive
Northampton, MA 01060
Signed under the pains and penalties of perjury this 4`h day of August, 1998.
Leon W. Malinofsky, Jr.
Its Attorney
182 Main Street
Northampton, MA 01060
(413) 584-7950
BBO #315740
4 August, 1998
i
COMMONWEALTH G,__,4ASSACHUSETTS
HAMPSHIRE, SS.
NORTHAMPTON AIRPORT, INC.,
, Plaintiff (s)
V.
Zoning Board of Appeals of the City of Northampton; its
members Mark Nejame, Alex Ghiselin, and Larry Snyder;
and Anthony Patillo, Building Commissioner of the City of
Northampton,
, Defendant (s)
,superior Court Department of the
Trial Court of the Commonwealth
Civil Action
No. Glg-213
SUMMONS
V Zoning Board of Appeals c/o City Clerk; Mark Nejame 47 High Street,
To the above-named Defendant s . Florence; Alex Ghiselin 164 Riverside Drive, Northampton;
Larry Snyder 196 Overlook Drive, Florence; Anthony Patillo 14 Autumn Drive, Northampton:
You are hereby summoned and required to serve upon Leon W. Malinofsky, Jr.
plaintiff 's attorney, whose address is 182 Main Street, Northampton, MA 01060 I
an answer to the complaint which is herewith served upon you, within 20 days after service of
this summons upon you, exclusive of the day of service. If you fail to do so, judgment by
default will be taken against you for the relief demanded in the complaint. You are also
required to file your answer to the complaint in the office of the Clerk of this court at
Northampton, either before service upon plaintiff ,s attorney or within a reasonable time
thereafter.
Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim
which you may have against the plaintiff Is which arises out of the transaction or occurrence that
is the subject matter of the plaintiff ,s claim or you will thereafter be barred from making such
claim in any other action.
Witness, ROBERT A. MULLIGAN, Esquire at Northampton, the FOURTH
day of AUGUST , in the year of our Lord one thousand nine hundred
and NINETY-)1GHT.
CLERK -MAGISTRATE
NOTES
I. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure.
2. When more than one defendant is involved, the names of all defendants should appear in the caption.
If a separate summons is used for each defendant, each should be addressed to the particular defendant.
3. Circle type of action involved. Tort — Motor Vehicle Tort — Contract — Equitable relief.
MW
THE COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT
HAMPSHIRE, ss. Civil No. clb -Z.13
NORTHAMPTON AIRPORT, Inc.,
Plaintiff,
ZONING BOARD OF APPEALS
OF THE CITY OF NORTHAMPTON,
and its members
MARK NEJAME,
RICHARD GHISELIN,
LARRY SNYDER; and
COMPLAINT UNDER
G.L. Ch. 40A, 5 17
ANTHONY PATILLO,
Building Commissioner of the City of Northampton,
Defendants
1. This is an action pursuant to G. L. Chapter 40A Section 17 to appeal the refusal
of the Northampton Zoning Board of Appeals to overrule the decision of the
Building Commissioner which denied an application by Plaintiff to determine
outdoor entertainment uses as valid nonconforming uses of Plaintiff's property.
2. The plaintiff, Northampton Airport Inc., is a Massachusetts corporation with its
usual place of business at Old Ferry Road, Northampton, Massachusetts.
3. In connection with its business, plaintiff owns the land set forth in the official
town records as comprising the airport parcel, which is the situs in question in this
controversy.
4. The defendant, the Zoning Board of Appeals of the City of Northampton, is the
authority charged with reviewing any decision of the Building Commissioner
determining plaintiffs entitlement to a so-called "grandfather" exemption for a
nonconforming use; the individual defendants are the members of the said Board
and residents of Hampshire County.
S. The defendant, Anthony Patillo, is the Building Commissioner for the City of
Northampton, charged with making an initial determination of whether a particular
use is "grandfathered".
6. On a date prior to June 17, 1998, plaintiffs received from defendant Patillo an
adverse determination of their application for "grandfather" status for outdoor
entertainment uses of the Airport property. The said denial was duly appealed to
the defendant, the Zoning Board of Appeals of the City of Northampton.
7. On June 17, 1998, the Zoning Board of Appeals held a hearing at which it was
determined to uphold the decision of the Building Commissioner, denying plaintiff
"grandfather" status for outdoor entertainment uses.
8. The Zoning Board of Appeals was presented with evidence justifying and
requiring a finding that the plaintiffs were grandfathered for outdoor entertainment
uses.
9. Nevertheless, the Zoning Board of Appeals by its members denied plaintiffs
application to overrule the Building Commissioner.
10. A decision with denial of plaintiffs application was filed with the Northampton
City Clerk on July 16th, 1998 (see attached as Exhibit A a certified copy of the
minutes of the relevant public hearings and the decsion as filed).
11. The decision of the defendant, the Zoning Board of Appeals of the City of
.Northampton, was incorrect and contrary to law and has denied plaintiff relief to
which plaintiff is entitled under the laws of the Commonwealth.
12. For the said reason, the decision denying the plaintiff the relief sought exceeds
the authority of the Zoning Board of Appeals.
13. Further, in light of the evidence presented to the Zoning Board of Appeals, its
decision is arbitrary and capricious.
Wherefore, plaintiff prays this Honorable Court as follows:
1. To annul the decision of the defendant Zoning Board of Appeals of the City of
Northampton.
2. To order the said defendant to grant plaintiff "grandfather" status for
appropriate outdoor entertainment uses; and
3. To make such other decrees as justice and equity may require. JIA RV TRI ^ L PML ESM -D
THE PLAINTIFF
By.
Leon W. Malinofsky, Jr.
Its Attorney
182 Main Street
Northampton, MA 01060
(413) 584-7950
BBO #315740
4 August, 1998
Office of Planning and Development
City of Northampton
City Hall - 210 Main Street
Northampton, MA 01060 - (413) 587-1266
FAX (413) 587-1264 - EMAIL planning@city.northampton.ma.us
-Conservation Commission -Historical Commission
-Planning Board - Housing Partnership
-Zoning Board of Appeals
Northampton Zoning Board of Appeals
Minutes of Meeting
June 17, 1998
The Zoning Board of Appeals held a meeting on Wednesday, June 17, 1998 at 7:00 p.m. in the
Council Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street, Northampton, MA.
Present were Members: Chair Mark NeJame, Alex Ghiselin and Larry Snyder.
Staff. Senior Planner John Bennett and Board Secretary Laura Krutzler.
At 7:03 p.m., NeJame opened the meeting and introduced fellow Board members. NeJame read the
legal notices advertising the Public Hearings.
At 7:59 p.m., NeJame opened the Continuation of the Public Hearing on an Appeal of the
Building Inspector's decision determining that the Northampton Airport is not
"grandfathered" for outdoor entertainment uses filed by Northampton Airport, Inc. for
property located at Old Ferry Road, Northampton, also known as Northampton Assessor's Map
25, Parcels 1,15 -19, 53 & 71.
Leon Malinofsky began by raising a procedural point, saying that he had been under the impression
that, since he was told last time that he need not return with witnesses, the Public Hearing was
closed. He said that if that were not the case and if the Board was going to take additional public
testimony, he may want the opportunity to rebut. He pointed out that there were people present [in
the audience] in opposition.
NeJame clarified that the hearing had been continued and said that members would have to decide
whether bringing witnesses back was appropriate.
Malinofsky confirmed that members had received a copy of his brief. He then stated that all the
Northampton Airport is seeking is to continue to operate the same sort of outdoor events as have
been going on there since the late 1800's, certainly before the time of the first Zoning Ordinance.
He said he understood that people who lived in the immediate vicinity of the airport may wish to
speak in opposition, but he said he hoped the Zoning Board would ultimately decide [the appeal]
based on chronology.
1
ORIGINAL PRINTED ON RECYCLED PAPER
NeJame briefly summarized Malinofsky's position as set forth in his letter and asked if Malinofsky
had had the opportunity to see the City's letter?
Malinofsky said that he had not and that, for that reason, he had addressed copies of his letters in
sealed envelopes to Board members. He said he felt it put him at a disadvantage that they had had
the opportunity to see his brief, but he had not had the opportunity to see the City's.
Bennett summarized the City's position as set forth in a memo from OPD staff dated June 10, 1998.
After Bennett had summarized the information from Section II of his memo, Ghiselin asked whether
it followed from the City's argument that the airport was now operating illegally? He said that this
seemed logical from what Bennett was saying.
Bennett responded that that was a question he did not explore.
In the course of his comments, Bennett also presented the suggestion that, because of the potential
implications of a decision in favor of the airport, the Zoning Board should require "hard" evidence
such as ticket stubs or something in writing to document the entertainment events. However,
NeJame pointed out that a problem with this was that the City Solicitor had previously stated that
the Zoning Board could take verbal testimony or written statements [as evidence]. He said he did
not think members could now question the sufficiency of the evidence when they previously had said
[the evidence] was sufficient.
Bennett continued with his presentation, concluding that if the Board were to overturn the Building
Inspector's determination, the applicant would still need to submit a Finding application to determine
exactly what specific [entertainment] uses have pre-existing nonconforming status. He suggested
that it would be incumbent upon the Board to define specifically which uses are grandfathered to
avoid an "unfettered free-for-all" of entertainment. At the very minimum, the Board would be well -
served to proscribe the grandfathered uses to those that appeared on the list submitted by Guisto, he
advised. A decision on what is a grandfathered use should be based on the Board's consideration
of credible evidence of what had been carried at the airport prior to 1927 without interruption, he
continued.
In response to a question from Snyder, Bennett clarified that he was not suggesting that Guisto file
a Finding application for every individual entertainment event, but that he file one application
defining proposed uses. Bennett commented that he did not recall seeing demolition derbies or
motocross events on the list [of events held in the past], and Ghiselin facetiously added that he had
not seen "Lions and Christians." Bennett said he thought it would be in the City's interest to have
a list of [specific] activities considered to be grandfathered.
NeJame said he did not understand how the airport could be asked to submit an application for a
Finding for a change, extension or alteration of a pre-existing nonconforming use, since he did not
think the owners were changing or altering the use? If the owners were going to have a circus,
according to the testimony, this was something which has been going on at least since 1925, he
2
elaborated.
Bennett responded that it seemed unlikely that what would be proposed as a modern-day event
would be a Wave dance or barnstorming, commenting that it would much more likely be a rock
concert. He continued that, if the owners were going to do something which was not demonstrated
to be identical to something which went on in the past, then it seemed that a Finding at the minimum
would be necessary in order to go forward as a nonconforming use.
NeJame clarified that if Guisto were proposing to do something which was not equivalent to what
was outlined - i.e., if he were going to expand, extend or alter [previously held events], he would
have to come in for a Finding.
Referring to the "long history of hostile relationship between the City and the Northampton Airport,"
Malinofsky expressed relief to have an impartial body to consider the appeal. However, he pointed
out that it was obvious from Page 2 of the City's brief that the City had taken much trouble to read
his brief before the meeting tonight. He noted that, despite the fact that he asked for [the City's]
brief, he was not given it.
Also, saying he wanted to assuage some of the concerns, Malinofsky stated that the Northampton
Airport was not looking to bring in "Lollapalooza" under the aegis of any grandfathering which
would be extended to them. That was a major event of a character unlike anything which had gone
on at the airport before, he acknowledged. He suggested a way of "compartmentalizing" events as
defining entertainment as anything which invites spectators or participants and then putting a limit
on attendance consonant with what had taken place in the past. He maintained that this would not
be "anything qualitatively different" from what had gone on in the past under Guisto's stewardship.
He cited the enmity between the City and the airport as a reason for this suggested approach,
pointing out that the permit process for holding an event at the airport today has become such that
some of the airport's former participants are no longer interested in holding their events at the airport.
Response to City Position.
Responding to points in the City's memo, Malinofsky said he did not think it was necessary for [the
outdoor entertainment uses] to be appurtenant to an existing airport. He said the question was not
what the airport had done, but what had been done on the situs.
With regard to concerns that [grandfathering outdoor entertainment] would allow a "free -for all,"
Malinofsky pointed out that only the owner of the situs could permit that, so this action would not
allow "anyone in Christendom" to set up a Lion and Christian show somewhere on the airport.
And, the fact that the property has changed hands and has not been a commercial airport since 1925
is of no moment, Malinofsky maintained. "We are talking about the use of the situs," he
emphasized, saying that, even if there were a different building and if the situs had a different owner,
this wouldn't matter under their analysis because the use pre-existed.
Malinofsky also pointed out that the fairgrounds in the area has been carrying on this use for an
3
extended period and that [entertainment] uses are still going on at the fairgrounds, which literally
abuts the airport. The fairgrounds received a similar grandfathering exemption two years ago, and
[the airport] is simply looking for the same treatment, he said. The fairgrounds has no restrictions,
he commented, saying the airport would be happy to accept restrictions if all their clients weren't
being driven away by the one-week application procedure.
Addressing himself to the argument that entertainment events couldn't revert to nonconforming
status, 'Malinofsky asserted that this was a disingenuous argument, assuming that in order to keep
grandfathering status, you have to break the law. He commented that this was an extraordinary
construction which he didn't think should be allowed to stand.
Regarding the last paragraph of the City's brief, Malinofsky agreed on the need "to find some
commonality between events." He suggested again putting a size limit on the events to accomplish
this. He also respectfully suggested that what the City is asking them to do in V "is exactly what we
have done."
"We have tried to show commonality in these events which could be grasped and acted upon," he
commented.
He also remarked that he had known Guisto and Benjamin for sixteen years and seen the types of
events they had put on and enjoyed them with his family. He respectfully submitted that the airport
was interested in being a good neighbor and would be a good neighbor and that the City would not
have to fear that "Lollapolooza" would take place. He observed that the airport had practically been
driven out of business specifically because there is animosity between a City Councilor and Guisto,
and they would respectfully request some sort of relief, even if it contains restrictions.
Discussion.
Referring to Malinofsky's letter, NeJame commented that the appellant initially began talking about
uses appurtenant to the airport, then switched his argument. By talking about use and not talking
about the airport, the appellant sidestepped the City's arguments 1 and 2, he noted.
Regarding Section N in the City's brief, NeJame clarified that this simply indicated [staff] thought
that, by securing permits for outdoor entertainment in the past, the airport was not acting consistently
with its argument that such activities were protected under grandfathering provisions.
However, Malinofsky contended that the airport started asking permission because, when they didn't,
they were getting City Councillors calling customers and telling them the airport was breaking the
law and not to deal with them. That is why the airport started asking for permits, he said. He
indicated that there was litigation pending regarding the City Councilor's actions.
Guisto added that he was previously unaware that he could go back and claim grandfathered status
and only found out two years ago when the fairgrounds received grandfathered status.
0
Guisto also said he would be willing to follow the conditions that there be no rock concerts, no
heavy equipment, and that attendance be limited to fifteen thousand people without having to get
a Special Permit. He clarified that he was talking about such functions as craft shows, Italian Fest,
fairs, SpringFest, Springfield Orchestra and carnivals. He said he was not looking to change the
nature of what the airport does, but the events help pay City taxes and the mortgage. He added that
he did not want to impose on the neighborhood with heavy equipment and thirty or forty thousand
people.
NeJame noted that he had a problem with a determination that the Building Inspector's decision was
incorrect because, from what members have heard, Patillo's decision was correct because he did not
have this information to make a decision.
Guisto responded that he had provided what he was asked to provide. He said that, at one point,
Patillo had said that if he had to give an answer, the answer would be no at that time, and Guisto
said, "Then, don't give an answer." He said Kuzdeba then told him that she would find out how far
back he had to provide information, but a week later he received a turn down, and he was never
asked to provide information.
Public Comment.
NeJame opened the floor to public comments.
Patricia Stone, who identified herself as a resident of 129 Riverbank Road for most of her
seventy-one years, said that the first circus she remembered was after Guisto purchased the airport.
Other than that, she said she did not ever remember any activities when Mr. LaFleur owned the
property. She said she had never objected to airport activities but wanted to preserve "our zoning
and our neighborhood." She said she would like to see proof of what the appellant was saying had
gone on.
John Bobala of 25 Old Ferry Road, who said he had lived at that address for forty-seven years,
said that when LaFleur airport was there and the LaFleur family was living on the premises, there
were events held there. He said that one of LaFleur's favorites was the airshow, and there was a car
show every once in a while. However, the airport never encroached on anybody's property - never
blocked the road or kept farmers from farming or residents from getting to their homes, he stressed.
In contrast, Bobala related that the Warped Tour (a large concert held in the summer of 1996) "took
over the entire neighborhood," blocking Old Ferry Road and preventing residents and farmers from
reaching their homes and fields. Bobala emphasized that no one had a problem with car shows and
carnivals as long as sufficient parking was provided to keep cars from parking on both sides of the
road, blocking passage for farm equipment. He commented that having a big band like the Warped
Tour blocking the road for twenty-four hours "doesn't work."
In contrast., Bobala reported that when the Warped Tour was held at the fairgrounds the next year,
the fairgrounds pulled everybody into their own parking and did not block the road, although there
was heavy traffic for about three hours coming in and for two hours leaving. Bobala concluded that
he did not think anybody had a problem with the airport having smaller events as long as the road
5
�i
was left open, but people do not want larger events which block the road.
Guisto acknowledged that there were problems with the Warped Tour the first year, assuring those
present that this would not happen again. However, he said he had more parking at the airport than
three fairgrounds, since the airport can hold six hundred cars. He also said he would not apply for
permission for a rock concert ever again.
Patillo repeated that the fairgrounds is grandfathered for entertainment, having had continuous
entertainment since'before the 1900's. He confirmed that they do have to contact the Department
of Public Works, Police Department, Board of Health and Fire Department when they hold events,
however. He also repeated that comparison of the airport to the fairgrounds was "comparing apples
and oranges." The fairgrounds has sanitation facilities and parking that is fenced in, and is a much
more controlled situation where [owners] can control crowds and cars, he observed.
Maria Tymoczko of 28 Pomeroy Terrace, noting that she had lived in her house since 1971 and
was close enough to be able to see airplanes coming on and off the runway, said she could not
remember a continuous series of airport events in the 1970's. She said she was here as a City
Councilor because of the tremendous interest and import to her constituents [of the appeal]. On
June 3rd, Zoning Board members heard evidence that there have been continuous airport events, but
tonight they have heard that there have not, she pointed out. She requested that, before finding
positively for the airport, the Zoning Board seek a sufficiency of evidence indicating that there has
not been a two-year abandonment of this usage. (She suggested written evidence from the Daily
Hampshire Gazette as an example.) Tymoczko commented that she thought Zoning Board members
would do the City a disservice if they relied on the memory of men who were young boys at the
time.
Regarding the Special Events permit process, she defended the current application, noting that there
is "lots of room for answers and not a lot of questions" and that somebody could probably fill the
form out in two or three hours. She also remarked that the airport is really flourishing and not being
driven out of business, with all sorts of interesting events such as hot air ballooning and skydiving.
She requested that, if Zoning Board members did grandfather certain events and set parameters, they
limit attendance to something in the range of three thousand. She noted that the Warped Tour, with
five thousand people, created considerable congestion. The following year, when attendance was
up, there were more serious problems, including encroachment on Sheldon Field and farmers not
having access to their fields, she related. She concluded that the size of events which had not caused
problems was more in the range of three thousand.
Tymoczko also stated that the revision of the Special Event permit application "had nothing to do
with the airport." She said City Councillors realized with the near -miss of having Lollapalooza that
[such a large event] could have created a dangerous situation, potentially blocking the bridge and
leaving residents no way to the hospital. Councillors realized that the application did not ask enough
questions, such as the maximum size of the event. She pointed out that one reason the City Council
has historically been willing to suspend zoning for non-profit events is that such events have donated
some profits to charity, and this was why Councillors felt the question [about distribution of the
profits] was reasonable. The answer allows Councillors "to weigh the amount of money going into
CI
the common weal against the potential disruption to the neighborhood of the event," she explained.
In response to a question from Snyder, Patricia Stone confirmed that the airport property had been
a dairy farm with a slaughterhouse and that Mr. LaFleur started the airport in 1929. She said that
there was a farm across the street [at that time]. Stone added that she didn't remember a string of
circuses going back, and the first event she remembered was a heavy equipment auction Mr. Guisto
had. She said that, if there were circuses in the 1930's or 1940's and she was living there, "I would
have been at the circus." If there were circuses, Stone said she was sure they were not a series of
continuous events. She said the only circus she remembered was at the fairgrounds.
Ann Blizniak of 139 East Street in Hadley, until this spring a resident of 122 Prospect Road,
said she lived [on Prospect Road] for forty-four years and used to ride horses with Patricia Stone's
daughter starting in 1956 until the 1970's. Blizniak said she enjoyed riding in the airport. She said
she did not remember continuous events at the airport, but whenever events were there, she did
attend them, including circuses and fireworks. Blizniak said her only concern was that she runs a
lot of horse shows at the fairgrounds, and one time there were fireworks at the airport while she had
horses at the fairgrounds and three horses were badly injured. She also said she had trouble with cars
parking on Old Ferry Road because the tractor trailer units which haul horses can not make the swing
to get out onto Old Ferry Road [when parked cars are in the way]. She said that, in the past, she had
used Fair Street as an alternative exit, but Fair Street is very steep, and it is very hard for livestock
to steady themselves going up a steep hill.
Blizniak she had a letter on file with the Mayor's office and the Fire Department requesting to be
notified if there are fireworks this year during the 4-H show, since this will be held the weekend of
July 4"'.
Blizniak also commented that, if Guisto charges people for parking, she would like to see him
charging people on his own land rather than stopping them in the road. She said she observed
workers charging people under the highway, which is a public road, to go to one event.
NeJame explained that when the appellant referred to "continuous" events, he meant at least once
every two years. In response, Blizniak said she did not remember attending an event every year until
the 1970's.
Guisto acknowledged that he had stopped people under the bridge one year but had learned this was
a mistake. After that, workers never stopped cars in the road again but instead stopped them on his
property, he said.
Ghiselin asked what sort of rules and regulations would govern events at the airport if the Board does
find that entertainment is grandfathered?
Patillo said that there are no [zoning] limits on attendance at the fairgrounds. Patillo referred
members to the Police Department regarding their criteria for crowd control.
Ghiselin pointed out that grandfathering would thus not lead to a "free-for-all,"since there are still
7
rules and regulations which govern any outdoor event. However, NeJame pointed out that while
the owners would have to run plans by various authorities, there would be no limitations on the
number of people or types of events. He noted that the request for grandfathering before the Board
is not limited to certain events and a certain number of people.
Guisto asked if he could amend [the appeal application] to request grandfathering with restrictions?
NeJame articulated some of the issues he was struggling with. Particularly, he said he had a real
question as to how to limit [the size and types of events protected under grandfathering provisions].
Malinofsky stressed that, even if the airport received grandfathering, owners would still be subject
to the same requirements to notify the Department of Public Works (DPW), the Fire Department,
the Board of Health, and the police that the fairgrounds are subject to. He pointed out that some
veto power would still exist, since these agencies would have the ability to turn down an event.
Patillo reminded members that the issue was whether to uphold his decision or not. He pointed out
that if the decision is upheld, there is an alternative - a Special Permit for outdoor entertainment -
under which events could be spelled out so there is no question.
Members continued discussion, with Ghiselin commenting that it was common sense that [airport
owners] have had a long history of using the airport for events other than strictly air shows, with
"pretty concrete evidence back through the 1970's." However, he commented that the further back
you get, the vaguer the evidence. Ghiselin said he thought it possible to come to a reasonable
compromise.
In response to a question from Stone, Guisto said that he purchased the airport inl982, and the
airport had been purchased in 1978 from Larry LaFleur by four other men.
Discussion continued, with Malinofsky commenting that there is precedent in Massachusetts for an
appellate panel reconsidering the evidence before it and not restricting itself to information which
was available to the body deciding the matter under it. He said the Board would create a "procedural
boondoggle" if they booted the decision back down [to the Building Inspector], and he thought the
simplest thing was for the Board to make the decision that the Building Inspector's decision was
incorrect not because the Building Inspector made a mistake, but because he did not have all the
evidence before him. He observed that this action would not slight Anthony Patillo or imply that
he dropped the ball...
Patillo commented that, after sitting through three hearings and hearing all the evidence that has been
presented, "My decision would still be the same, and I would deny it, and the ball would be back in
your court."
Regarding the opinion of the City Solicitor that verbal testimony was acceptable evidence, Bennett
commented that he had not understood this to mean that evidence should be limited to that. He
noted that, especially in light ofMalinofsky's comments about an appellate court's having the ability
to consider all the evidence, if the Board were interested in looking further into the merits of the
0
grandfathering argument, it would seem prudent for them to look for harder documentation
elsewhere.
NeJame said he thought that asking Guisto to provide harder evidence now would be inconsistent
with what the Board told him before. He also said he thought it would involve saying that members
don't believe the two gentlemen...
However, Bennett pointed out that members could say they have conflicting testimony.
NeJame asked Snyder and Ghiselin if they felt they had enough information to close the hearing?
They said yes.
NeJame suggested holding deliberations while in Public Hearing so that members could accept
additional information if needed.
Snyder stated that he agreed with Tony's decision, supporting his position by saying that it was his
belief that, under City Ordinance Chapter 26 enacted in 1927, the airport was zoned residential,
based on the definition of business from the ordinance and testimony from Atwood, Raymond and
tonight that the airport was a dairy farm with a potato farm across the street. He said there was no
permit for aviation use recorded, so [evidence of entertainment use] had to go back to 1927, and
Guisto also had to prove that events were non -air related. Snyder noted that Guisto had said that
from 1973 to present, events were all permitted, so this represented a two-year break [in the
nonconforming entertainment use]. He concluded that, therefore, the airport was never zoned for
business, and there was a two-year discontinuance.
Snyder clarified that he saw a break [in the pre-existing nonconforming entertainment use] between
1973 and the present because events were permitted in that time period. He said his contention
would be that if the events got permits, they were not grandfathered.
Ghiselin expressed the opinion that, by allowing the airport to operate openly, the City had endowed
the airport with some legitimacy, whether commercial or not. He said that the airport was not
operating illegally in his mind, since, whether there was a record of it or not, the City had made an
agreement that the airport could exist there. He said he also thought Guisto had produced evidence
of other events but said that what he had a problem with was how much is grandfathered.
Ghiselin continued that clearly the airport was grandfathered, and ballooning, skydiving, etc., were
grandfathered, because the airport has been operating openly and without a problem. He also
commented that it seemed to him that Guisto had met the criteria that Zoning Board members had
set, because he had produced people willing to swear that these events had occurred and that there
was a continual history of peripheral events. He said he could picture small carnivals and thought
that these small events had always occurred. (He noted that there was a period of more intensive use
during the war, and he thought that this was when Mr. Atwood said there was an event with up to
five thousand people.)
Ghiselin stated that he thought the appellants had made their case and that he would be willing to
9
M
overturn [the Building Inspector's decision]. He said that disagreement would be as to exactly what
would be grandfathered.
NeJame expressed the opinion that both the City and the airport had some merits in their arguments,
and he did not see where any authority would rule one way or the other definitively. He said he kept
going back to the question before the Building Inspector, which was whether the airport was
grandfathered for outdoor entertainment uses. Referring to the definition of such uses given in the
letter from Malinofsky dated June 5, 1998, specifically, "activities or spectacles of general interest
which may be expected to draw participants or spectators" NeJame commented that he was
interested in seeing how procedurally members could modify that [definition]. He said that if that
were the question the Board had to rule on, he did not think that general definition was something
that had been grandfathered. He said he thought this was way too broad, asserting that what might
have been grandfathered was "something much more specific than outdoor entertainment uses."
Malinofsky expressed a willingness to modify the definition now. However, NeJame said he did not
know how to do that, asking rhetorically, "How do you conditionally determine to uphold or deny
the Building Inspector's decision?"
Malinofsky said he thought NeJame's view of how to proceed was "overly legalistic for this type
of proceeding," commenting that he thought the Board could think of itself as a body here to do
equity, not as a Court.
However, NeJame countered that Malinofsky was essentially asking members to set up a Special
Permit of some sort in the guise of grandfathering. He said he thought Zoning Board members were
being asked to figure out limits on what the airport can and can not do, and he did not think they
were the appropriate Board [for this decision].
Dialogue continued between the appellant and the Board, with NeJame maintaining that he would
have to vote against a general grandfathering of outdoor activities, and Malinofsky offering more
than once to define more specifically the types of events to be grandfathered.
NeJame commented that, other than airport -related uses, the only entertainment events which
extended back to 1927 were circuses and dances, so that, if a narrow definition were created, it
would have to be really narrow.
Patillo reminded members that the issue before them was still whether or not to overrule his
decision. He observed that Guisto had stated that he was looking for stipulations and said he thought
[including stipulations] was beyond the Board's authority. He expressed the opinion that the
appropriate procedure [for allowing outdoor entertainment] would be a Special Permit listing the
exact things Guisto is proposing. At that point, the Police and Fire Departments could be brought
in to try to determine the size of events, he said.
Bennett confirmed that there was a provision under zoning for a Planning Board Special Permit for
outdoor entertainment use. He also commented that it was clear to him that discussion was no
longer about an accessory use but about a principal use, and the venue for [allowing] that would be
10
the Planning Board.
Maria Tymoczko commented that she thought that abutters were entitled to have input if the Board
would be talking about restrictions. She pointed out that the hearing was not advertised as a forum
for discussing what sort of events would be appropriate. Tymoczko said she agreed with NeJame
that it was an "all or nothing situation," not a situation for setting parameters for events.
However, Malinofsky responded that, "We don't need limits, we need a definition." He again urged
members to define 'the grandfathered use now, suggesting a maximum attendance of fifteen
thousand.
Ghiselin commented that he thought he was beginning to change his mind. He said he saw Patillo'
point and thought [the decision] was "all or nothing." He stated that he would not be able to vote
for comprehensive outdoor entertainment grandfathering, saying he did not think the evidence
supported that. However, he agreed that the airport "was grandfathered for something," saying he
thought Guisto had a nonconforming use which could be extended or altered.
NeJame said he thought that if he were a judge he would tell the appellants to go back and settle.
However, if forced to make a decision, NeJame said he would have to say that the Building
Inspector made the right decision because he did not think the Zoning Board was the appropriate
Board to set parameters on what type of events should be held.
Guisto asked if this was even though members had been shown that there were continuous events
back to the early 1920's?
NeJame said he did not think circuses went back to the 1920's, and Snyder agreed the appellant did
not show that.
Snyder moved to close the Public Hearing. Ghiselin seconded. The motion passed
unanimously 3:0.
Snyder moved to uphold the [Building Inspector's] decision not to grandfather the
Northampton Airport based on the evidence heard. Ghiselin seconded, commenting that he
did not think the evidence supported general outdoor entertainment grandfathering.
Ghiselin added that he thought the airport was entitled to have some outdoor entertainment, but he
thought the Planning Board was the appropriate Board to determine that.
NeJame said he agreed with the motion, although he did not agree with the reasons. He agreed he
thought something was grandfathered, but he did not know what it was. He said he did not think the
Zoning Board was the appropriate Board to consider what was grandfathered and that, as framed,
he did not think: [the Building Inspector's] decision was incorrect.
The motion passed unanimously 3:0.
A tru ' CU
Attes City
I City
p C�C�C�OdC�
11 J U L 16 1998
Clerk
of Northam ton'—CITY CLERKS OFFICE
NORTHAMPTON. MA 01060
Office of Planning and Development
City of Northampton
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 587-1266
FAX (413) 587-1264 • EMAIL planning®city.northampton.ma.us
*Conservation Commission *Historical Commission
*Planning Board • Housing Partnership
*Zoning Board of Appeals.
Northampton Zoning Board of Appeals
Appeal of Building Inspector's Decision
Minutes of Meeting
June 3, 1998
The Northampton Zoning Board ofAppeals held a meeting on Wednesday, June 3,1998 at 7:00 p.m.
in the Council Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street, Northampton,
Massachusetts.
Present were Members: Chair Mark NeJame, Alex Ghiselin and Larry Snyder.
Staff: Senior Planner John Bennett and Board Secretary Laura Krutzler.
At 7:13 p.m., NeJame opened the meeting and introduced fellow board members. He read the legal
notices and explained the procedure he would use in conducting the hearing and the Board's
procedure in reaching a decision.
At 8:00 p.m., NeJame opened the Continuation of the Public Hearing on an Appeal of the
Building Inspector's decision determining that the Northampton Airport is not
"grandfathered" for outdoor entertainment uses filed by Northampton Airport, Inc. for
property located at Old Ferry Road, Northampton, also known as Northampton Assessor's Map
25, Parcels 1,15 -19, 53 & 71.
Richard Guisto was present, accompanied by Leon Malinofsky, an attorney with offices at 182 Main
Street, Northampton.
NeJame disclosed for the record that, in the past, unbeknownst to him, his firm had represented the
Northampton Airport. He said they do not currently represent the airport in anything, but, within
the past week, the possibility has arisen that the airport may retain his firm in the future. NeJame
said that ordinarily he would not sit [under such circumstances], but since everybody was present
and the Board did not have an alternate, he thought the hearing should go forward.
A man in the audience who did not identify himself for the record interjected that the State Ethics
Commission has consistently ruled that, at the stake of a quorum, they would allow someone with
ORIGINAL PRINTED ON RECYCLED PAPER
a potential conflict of interest to sit on a hearing.
NeJame commented that the Zoning Board had received some documents tonight and asked Bennett
to review them.
Bennett referred to a copy of the 1948 zoning map, saying that this showed the area of the airport and
indicated that the airport is in neither a business or an industrial district, leaving it as either
residential A, B or C. He said he also had a copy of the 1948 ordinance.
Bennett reviewed his memo to the Board dated June 3, 1998. Regarding the zoning of the airport
in 1927, he said that a close reading of the 1927 ordinance indicated that the area where the airport
is located was a Residence district [at that time]. Bennett read the following definition of Non -
Residence Districts from the 1927 Zoning Ordinance:
"Non -Residence Districts shall comprise (1) all lands which at the time this ordinance
becomes effective are used for any business or industry other than farming, truck
gardening, the growing of trees, shrubs, vines or plants, the raising of animals or the
conduct of a boarding or lodging house; and 2) all lands located and fronting upon any
section of any street or way which lies between two successive intersecting streets and
in which section not less than one-half of the lot frontage on the same side of the street
as the said intersecting streets, and also not less than one-half of the lot frontage on the
other side of said street directly opposite said lot frontage is at said time devoted to
business or industry or is manifestly intended to be so used.
Bennett noted that the airport's frontage is listed as Old Ferry Road, and the two intersecting streets
are Cross Path Road and Strongs Road.
Guisto pointed out that the streets have all changed and that Strongs Road has been moved so that
it is not even in the same place anymore. He said he thought members should be looking at a map
from the same time as the ordinance.
Continuing with his presentation, Bennett explained that the airport did not meet the second part of
the Non -Residence definition, because he had not seen any evidence that there was a business [across
the street] or that the property [opposite the airport] was intended to be so used. He explained that,
in order to qualify as a Non -Residence District, not only did the subject property have to be used for
business, but the lot across the street as well. He acknowledged that it had taken him quite a while
to understand the wording of the ordinance.
Guisto said his understanding was that in 1927, there were only three possible districts, and one was
business. He said that, according to the map he had, it appeared that what is now the airport was
business at the time. He also said he had testimony tonight that the LaFleur property back to 1926
was a dairy firm, selling bottled milk.
Malinofsky said that he had never had a complete copy of the 1927 ordinance and had not analyzed
it from that standpoint.
Discussion continued as to whether the airport's location met the definition of a Non -Residence
District as set forth in the 1927 ordinance. Ghiselin expressed the opinion that the property seemed
to be specifically exempted by the first part of the definition, because this specifies that [in order to
be considered a Non -Residence District] the land must be used for a business other than farming.
Malinofsky said he was not sure the property had to meet all three (sic) criteria to qualify as a Non -
Residence District. He said it looked as if the ordinance was saying that if any of [the criteria] are
met, [the property] is a Non -Residence District. Malinofsky maintained that the property met the
first part of the definition, since there was testimony that the use was a commercial milk operation
which sold bottled milk off the premises. He said there was a question in his mind as to whether
they met the second part of the definition, but he could not say without further analysis that they
definitely did not. He read the second part of the definition aloud, commenting afterward that he had
not gone over this specific point with witnesses, so he did not know if he could develop and
demonstrate that. However, he said he thought he could demonstrate [the first criteria], and he also
could provide the Board with sufficient information to conclude that there was outdoor entertainment
use at the parcel now known as the Northampton Airport prior to the enactment of the earlier zoning
ordinance.
Malinofsky submitted a document to the Board setting forth in table form items to which various
witnesses could testify.
Malinofsky also said there was a question in his mind as to when the Zoning Ordinance went into
effect. The Board of Alderman seal was dated November 7, 1929 but the ordinance said it was
enacted September 26, 1927. Malinofsky said he assumed [the zoning] was approved on September
26`h and went into effect November 7, 1929.
NeJame said it was apparently the 1929 ordinance [found in City records], but he noted that it
contained a handwritten note saying that the ordinance was originally enacted September 26, 1927.
Patillo said he understood the zoning was originally approved in 1927 but was amended in 1929.
NeJame advised the appellant that the City's position is that the original ordinance was enacted
September 26, 1927.
Malinofsky commented that he didn't know if the City's position was adequately supported by any
Sort of evidence before this panel. He said he did not know what kind of weight could be given to
pencilled interlineations, observing that the only thing seen in print was that the ordinance was
enacted in 1929. He respectfully suggested that, to be given any weight, [the City's position] should
have some sort of evidence. He commented that [the City's conclusion that the ordinance was
enacted in 1927] was "nothing more than supposition put forward in an unsupported manner," so
he did not think the Board could take any sort of judicial notice that [such conclusion] was true. He
stated that he only saw in print that the ordinance was in effect November 7, 1929 and, absent
anything showing otherwise, he did not think [members] could assume otherwise.
NeJame ask,6d if Malinofsky was saying that, because the property was a commercial dairy, this
somehow made the zone commercial?
3
Malinofsky responded that he was saying that, from time prior to the enactment of the zoning
ordinance, there were outdoor entertainment uses at the site now known as the Northampton Airport,
and, for that reason, said uses were valid nonconforming uses at the time the zoning ordinance went
into effect. He clarified that, at the time the first zoning law came into effect which would have
made the airport a residence area or district, there was something other than a residence area or
district there, meaning [the use] was nonconforming at the time the first zoning ordinance came into
existence.
NeJame asked how the fact that a dairy was at the property at the time the property was rezoned
residential resulted in the ai rt being grandfathered as a pre-existing nonconforming use when the
property changed over to being an airport?
Malinofsky replied that he did not think it was necessary that the airport be there, but he thought it
was only necessary that some sort of [entertainment] use predate the zoning ordinance. If there were
activities going on there prior to the first zoning ordinance, the fact that [the site] did not become
known as the Northampton Airport until 1929 is immaterial, Malinofsky maintained. If there were
flying circuses, barnstorming, etc., it does not matter if the parcel was a dairy or an airport, there was
a pre-existing entertainment use going on prior to the enactment of the first zoning ordinance, he
asserted.
NeJame said he understood [the concept of] pre-existing nonconforming uses - that, if the use was
in effect before zoning, then that use could continue as long as it wasn't abandoned for two years or
more, since it was then legally nonconforming. However, he indicated that he couldn't understand
the claim that the use continued to be grandfathered when it changed to a totally different use, even
though still commercial.
Malinofsky said he understood NeJame's point, but he countered that what goes on on a particular
parcel is not always conclusively controlled by what the title of the parcel is. He said that the
property may very well have been a dairy farm and may not have become an airport. Malinofsky
clarified that he was not trying to show that there were not other uses before zoning, he was only
seeking to show that the uses he was seeking "grandfathered" status for pre-existed zoning. He
added that whether a landing strip was located on a parcel calling itself a dairy farm or on a parcel
calling itselfNorthampton Airport seemed to be irrelevant, suggesting that ifhe could show outdoor
entertainment uses prior to the first zoning ordinance, it did not matter.
Referring to the chart he submitted, Malinofsky explained that this represented summaries of
discussions he had had with Roger Atwood and James Raymond regarding the former use of the
property. He began summarizing their testimony as set forth on the table, but NeJame suggested
instead hearing directly from both witnesses.
Witness Testimony.
James D. Raymond of 71 Columbus Avenue, a resident for seventy-seven years, testified in
response to the following series of questions from Malinofsky:
4
Malinofsky: Of your own personal observation, what was the earliest year you have recollection of
outdoor activities or entertainment uses at the parcel of land now known as the Northampton
Airport?
Raymond responded that both he and Roger Atwood lived in the neighborhood from the time they
were too young to move around, and this area was very close by - less than a mile away from home.
Raymond explained that he became interested in the airport and fairground and was there quite often
because he liked to see the airport. He said he recalled some of these activities, specifically,
circuses - Coles Brothers and others - coming in from time to time. He said they found the airport
a fascinating place to be as youngsters, and he still hangs around the airport.
Malinofsky: Going back to 1927, do you have any specific memories?
Raymond commented that, "one does not record these things at age seven or eight to be able to recall
specifically." However, he stated that he did see these activities every year or two and did recall
them, although he did not want to be crowded into saying he remembered specifically on such or
such a date. Raymond said he could say unequivocally that these things did take place beginning
in 1927 or 28, when he began hanging around the airport. He was born on October 19, 1920, he
noted.
Raymond continued that he could not nail down specifically whether [entertainment activities] began
in 1927 or 1928. They began around that period when he began hanging around at the airport, he
said.
Malinofsky asked about the variety of events and whether there were any uses other than Coles Bros.
circuses?
Raymond clarified that he had no personal knowledge of events between 1941 and 1945, since he
was away in the war.
When asked specifically about the types and frequency of events from 1927 up through 1941,
Raymond said that he recalled circuses and air circus, but he could not relate the frequency. He also
said he recalled the college getting involved in events which were related to flying and that the
airport had auctions from time to time. He confirmed that these activities started in the period of
1927.
In response to continued questions, Raymond presented the following additional information:
---- The Coles Bros. Circus and another circus (he said he thought it was the King Bros.)
came once a year. The Coles Bros. Circus would stay two or three days. He
confirmed that the Coles Bros. Circus came between the years 1927 and 1941 and
between the years of 1946 to 1973, saying he knew that when his children were born
he would go down once a year to attend events.
---- Raymond said he remembered auctions better from the 1950's than earlier but
5
u
acknowledged there probably were ones prior [to the 1950's].
---- Raymond confirmed there were "periodically" dances held at the airport - at least
once a year. Different organizations held events there for fundraising, he noted.
There was more than one dance and fundraising event held each year from the early
1950's to the late 1960's and early 70's, he confirmed.
Raymond also referred to flea markets and car shows. In response to a question from Malinofsky,
he confirmed that, from 1946 on, there were entertainment events at least once a year through 1973.
Roger Atwood of 34 Hubbard Avenue, born in 1921, commented that he was "bitten by the bug"
by all the events he witnessed as a child, ending up making aviation his life's work. He related that
he had run six airports and closed two airports. Atwood referred to some of the aviation feats he had
witnessed locally, including an occasion when the whole U.S. Army Air Corps circled up, turned
around by the Oxbow and landed at Bowls, Agawam.
When asked the year of his earliest memory of entertainment activities at the airport, Atwood replied
that [such activities were] from the late 1920's. He said that, in constructing the chart, he recalled
flying circuses and barnstorming as early as 1928, and he confirmed that these continued at least
annually through 1940.
Regarding the Coles Bros. circus, Atwood said that this continued until at least 1941. A King
carnival used to come too, he added, noting that he attended the Bridge Street School and used to
pass out passes to the kids.
In response to leading questions from Malinofsky, Atwood also confirmed the following
information:
---- Atwood spent World -War II at the airport training military aviators, and
entertainment events such as Wave dances were held during this time.
---- Atwood said he recalled carnivals being held at least through 1949 and that there
were a number of entertainment events in 1949.
---- Beginning in 1950, there were annual dances sponsored by different service clubs.
---- Beginning around 1951, there were annual carnivals at least through 1973. (Circuses
would come to town for two or three days, he related.)
Malinofsky asked if there were annual flea markets starting in 1955 through 1973? Atwood said that
what people call flea markets today were not necessarily the same thing then, but he confirmed that
people would bring parts of cars to trade.
Malinofsky' pointed out that, so far, he had only asked about things Atwood knew from personal
observation. He asked whether he knew by repute or reputation whether any of these activities had
been going"on in 1926, 1927 or 1928?
Z
Atwood said a commercial dairy, or milk business, which produced special milk for babies, operated
prior to 1926. He said he was not positive if flying circuses and barnstorming were taking place
prior to 1928, saying he recalled they occurred in the late 1920's. Upon further questioning,
however, he said that it was common knowledge that these events had been going on prior to 1928,
in 1926 and 1927.
Raymond agreed that it was his understanding that these events took place in prior years, although
he did not [personally] see it and did not remember it. It was common knowledge that [barnstorming
and flying circuses] began the year before or two years before, he said.
Malinofsky asked if Raymond knew that these events were there as early as 1926?
Raymond said he only saw them personally in 1927 or 1928, but he knew that barnstorming and
flying circuses had started earlier. He confirmed that it was common knowledge that, prior to 1927
and 1928, these activities were also taking place.
Members asked questions, resulting in the following additional details:
---- The parcel in essence used to be a dairy farm which sold milk, Raymond confirmed.
He said that it did not look much different, except that some of the land was filled
and flattened out. The LaFleur's converted the property to the airport. He said that
by the time he started hanging around there in 1928, the cows were gone, and it was
an active airport.
---- A potato field was across the street from the farm, Raymond said, with Atwood
adding that there were a couple of houses on Cross Path Road with little farms.
Bennett asked if the area which is now the airport was the same as the area which was earlier the
dairy farm?
Atwood said the present airport added pieces to it. There used to be a slaughterhouse [on the
property], he added.
In response to a question from NeJame, Atwood said the slaughterhouse and piggery were in
operation in the early 1920's, and Raymond added that it went out [of business] in the late 1950's.
However, Guisto said that, according to Mrs. LaFleur, the slaughterhouse dated back to the 1800's.
Guisto said the piggery was actually across Riverbank Road from the airport.
Malinofsky asked Raymond, Atwood and Guisto if they were familiar with the current dimensions
of the airport parcel and if they could state what parts of the parcel were not there previously?
Guisto and Atwood estimated that ten or fifteen percent of the existing parcel was missing back in
1928. Guisto explained that, in its present configuration, the airport has seven parcels. He said that
five pieces of land were purchased in very narrow strips in the north northwest corner of the airport,
but, otherwise, the airport remained in its present configuration.
7
`--i I _1/
Guisto also attested to his personal knowledge of entertainment events at the airport. Guisto said
that he had run the airport from June of 1992 but had knowledge of events on the parcel back to
1973. Guisto said he made up the list which had been passed out to members (see Exhibit A).
Malinofsky asked if Guisto affirmed to the Board that the events [listed] took place in the years
specified?
Guisto said that he was more than affirming, since there were statements turned in from various
companies to back up each of the claims. Specifically, Guisto said he had certification from RGL
regarding the air show in 1973 and certification from Bear Mountain Band that they started in 1972
or 1973. He mentioned by name a number of the other events on the list, commenting that these
were all certified and documented in City records and turned in to the Building Inspector.
Guisto said that he began getting outdoor entertainment licenses about nine and a half or ten years
ago - when the law changed, and he was told that he had to get a permit. He maintained that he had
never had an event which was not held legally.
Malinofsky referred to a letter from Peter Payne saying that the Lion's Club would no longer be
holding car shows at the airport. Guisto added that the Warped Tour and Scottish Grounds also
would no longer hold events there, noting that they had all been advised to go to the fairgrounds.
Guisto asked members to forgive him if he was bitter, but he said that [City officials] had tried to
attack and put him out of business in more ways than one.
NeJame noted that Guisto's initial question was whether the airport was grandfathered for "outdoor
entertainment uses." He asked how Guisto was defining that?
Guisto responded [that he was defining outdoor entertainment as] the types of events on his list.
NeJame said that auctions did not seem to be entertainment, and Guisto replied that these were not
a big deal to him. He indicated that he was more concerned about being able to host air shows,
bands, craft fairs and fireworks.
Discussion continued, with Guisto expressing frustration with the eight -page Special Events permit
application he must currently complete. He contended that this permit process is "only for the
Northampton Airport. You can hold anything you want in Northampton as long as it's not at the
airport."
Guisto also said that City officials had never provided him with evidence that earlier zoning
ordinances said a person could not hold a special event where he is. He acknowledged that zoning
now does not allow this but contended that there was no law earlier saying someone couldn't do it.
NeJame articulated some of the questions he was considering in reaching a decision, including when
the Zoning Ordinance took effect, what the airport was zoned at that time and whether some sort of
entertainment use was going on when the property was a dairy farm.
Malinofsky pointed out that members have testimony that flying circuses and barnstorming events
were going on on the parcel "back to 1925 or 1926 by repute" and "back to 1927 and 1928 by
personal observation." He commented that, if something qualifying as a pre-existing nonconforming
use was going on on the parcel, what the property was called did not seem to matter.
In the course of further discussion, Malinofsky specified that the airport started up in April of 1929.
NeJame said he was trying to understand the premise under which Malinofsky was saying that
entertainment uses were grandfathered?
Malinofsky responded that he was claiming "grandfathered" status, "because at the physical parcel,
outdoor entertainment was taking place prior to 1927 - in fact as far back as 1925." Since outdoor
entertainment was going on there prior to any zoning law, it is a nonconforming use, he claimed,
asserting that it made no difference if the parcel was zoned residential or business.
Public Comments.
NeJame opened the floor for public comments
Patillo explained the events which had led to the appeal. He said that Guisto submitted a Zoning
Permit Application to be grandfathered for entertainment, and he, in turn, asked Guisto to present
a chronology showing that there was uninterrupted use going back to 1929. Patillo waited, got
pieces of paper which were not complete, then was accused by Guisto of holding up the procedure,
he said. Patillo had a meeting with Malinofsky, Guisto and [former Senior Planner] Paulette
Kuzdeba, and, at that meeting, Guisto provided the year 1929 [as the date from which the airport was
pre-existing nonconforming.] After being asked by Guisto to act, Patillo said that, based on the
information he had, he would act to deny the request "and let the [Zoning] Board decide."
Ghiselin asked Patillo if the evidence he had now seen now would have changed his mind?
Paitllo said that, if the evidence he had seen had been presented then, he could have made a decision.
NeJame said he was trying to see if there were any mechanism for sending [the request] back to the
City to look at the additional evidence which had been put in. He commented that it seemed that
there was a lot more evidence now then before. He also said he would like to see when the Zoning
Ordinance actually took effect, since the appellant says 1929, and the City says 1927.
Also, referring to the appellant's argument that entertainment was grandfathered because it was
taking place before the airport came into existence, NeJame observed that the City's position has
been different because [City officials] were looking at different grounds for the appeal. He
commented that, since the whole focus had changed, he would like to see the appellant's position put
down in writing, including i) when the appellant claimed the ordinance came into effect, ii) precisely
what he wanted grandfathered and iii) the general rationale [for claiming "grandfathered" status].
He said he thought that if he saw the City's position and the appellant's position down in writing, he
could make a better decision.
G5
Ghiselin endorsed NeJame's suggestion of returning the request to the Building Commissioner,
pointing out that the evidence which had been presented "was totally different evidence than what
[Patillo] originally ruled on."
However, Malinofsky commented that "the City has been indescribably hostile toward the airport,"
saying that he did not see any hope for any favorable action on their part. He suggested swapping
statements of position before the next hearing.
Phillip Sullivan, City Councillor at Large explained his involvement - that he had been
approached by Malinofsky some time ago because Malinofsky felt that the City Solicitor was not
returning his calls on a timely basis. He said he brought this to Kuzdeba's attention, who agreed to
set up the meeting with the City Solicitor, the Building Inspector, Malinofsky and Guisto (which
Sullivan attended.) He said his involvement was to expedite the process because of"footdragging"
by the legal department. He suggested that Zoning Board members put a time limit on receiving
information from the City Solicitor, since he had spent a lot of time today with a person with a
problem with a legal matter which has dragged on.
NeJame said information should be submitted by June 10th. He asked Bennett to provide
[information] to the appellant.
Malinofsky requested a continuance to June 17, 1998 at 7:00 p.m.
Snyder moved to accept the request for a continuance to June 17, 1998 at 7:00 p.m. Ghiselin
seconded. The motion passed unanimously 3:0.
NeJame said he thought the Board needed two associate members who come all the time. He
commented that he thought two more voices would be useful and that this would have allowed him
to step down.
Snyder moved to adjourn. Ghiselin seconded. The motion passed unanimously 3:0.
The meeting was adjourned at 9:55 p.m.
UL 1 6 1%8
CITY CLERKS OFFICE
NORTHAMPTON MA 01060
A tru
LI� r
Attest• ,City
City
10
Clerk
of Northampton
L
Office of Planning and Development
7 City of Northampton
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 587-1266
FAX (413) 587-1264 • EMAIL planning®city.northampton.ma.us
•Conservation Commission -Historical Commission
•Planning Board • Housing Partnership
•Zoning Board of Appeals
Northampton Zoning Board of Appeals
Minutes of Meeting
May 20, 1998
The Northampton Zoning Board of Appeals held a meeting on Wednesday, May 20, 1998 at 7:00
p.m. in the Council Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street,
Northampton, MA.
Present were Members: Chair Mark NeJame, Alex Ghiselin and Larry Snyder.
At 7:05 p.m., NeJame called the meeting to order and introduced members of the Board.
NeJame read the legal notice advertising tonight's hearings.
At 7:07 p.m., NeJame opened the Continuation of the Public Hearing on an Appeal of the
Building Inspector's decision determining that the Northampton Airport is not
"grandfathered" for outdoor entertainment uses filed by Northampton Airport, Inc. for
property located at Old Ferry Road, Northampton, also known as Northampton Assessor's Map
25, Parcels 1,15 - 19, 53 & 71.
NeJame explained the procedure he would use in conducting the hearings.
Richard Guisto presented the application, accompanied by Roger Atwood. Guisto informed
members that his other witness, Jim Raymond, was in the hospital in Philadelphia having cataract
surgery but that both he and Mr. LaFleur would be happy to speak with Zoning Board members.
Guisto stated that, although he had been asked to provide proof going back to 1929 [that
entertainment events were held at the airport], he believed that it was not necessary to provide proof
back to 1929; rather, he believed he needed to prove only that the airport was a commercial operation
at that time. Guisto stated that there were three types of zoning districts in 1929, and the airport was
commercially zoned until 1947, when its zoning was first changed to residential. He indicated that
he and his attorney believed that he needed to provide proof of entertainment events prior to 1947
only, since, prior to that, such activities were legal.
Guisto read a letter from Mr. LaFleur, the airport's former owner. Among other things, the letter
stated that a large dairy operated at the site from the late 1800's and that the airport was zoned for
ORIGINAL PRINTED ON RECYCLED PAPER
L
�i
commercial use until the late 1940's.
Guisto stated that Roger Atwood would be able to confirm the information in the letter and that Jim
Raymond would be back on Saturday.
NeJame suggested that Guisto submit the letter from Mr. LaFleur in affidavit form and do the same
with [a statement from] Jim Raymond.
Roger Atwood of 34 Hubbard Avenue, who identified himself as "a citizen for seventy-six years,"
said that he had learned to fly at the Northampton airport and run a naval training program at LaFleur
Airport during the war, so he was able to see the different functions which went on there. Atwood
said that the airport was home to the first inter -collegiate air meet in the country, featuring flying
clubs from universities such as Harvard, Yale, Dartmouth and Williams College, in about 1940.
(Guisto corrected that the air meet was held in 1937, saying that he had a ticket for the event).
Atwood said he also remembered carnivals such as Cole Brothers' circuses being held at the airport
in 1937 or 1938, [with organizers] leasing a place on Cross Path Road. He referred to flooding in
1936 and 1938, saying that he canoed through the area at the time. Atwood said he remembered
selling tickets for rides on airplanes to earn flying time in 1935 and 1936, noting that he became the
youngest commercial pilot in the country in 1940.
Guisto said he had a list of other events which he [personally] had seen and would be willing to
testify to. Guisto provided this list to Zoning Board -members, mentioning some of the specific
events on the list. In addition, he mentioned that events such as a training program, USO dances,
bond fund-raising, a Wave dance, tag sales and craft fairs were held at the airport.
NeJame asked if there were any other public comments?
Claudia Lefko of 40 Valley Street commented that one of the issues in her neighborhood is noise.
She said that, with loudspeakers, peoples' fear is that not only will those [at the airport] hear the
event, "but everybody in Ward III" will.
Members questioned Building Inspector Anthony Patillo to clarify the issues involved in his
decision. Patillo confirmed that, under the 1927 Zoning Ordinance, the airport was in a residential
zoning district. He said that anything which was not business prior to 1929 would have needed
permission from the Alderman to continue operating, and he could find no permit on record. He also
said that the earliest zoning map, dated 1947, showed the airport as being in a residential district.
NeJame clarified for those present that the opinion of the City Solicitor was that the appellant needed
to establish that there was entertainment taking place from 1929 forward with no discontinuances
for more than two years. He said he understood that Guisto was maintaining that he only needed to
provide evidence of entertainment from 1947 forward and acknowledged that there appeared to be
disagreement on this point.
2
Guisto said he could prove that there was something every single year from 1939 on.
Guisto continued to maintain that the airport had been zoned for business in 1929. He said that he,
too, had researched City records. Referring to the zoning designations in 1927 - General Residence,
Single Residence and Non -residence - Guisto asserted that the airport's zoning was Non -residence,
since there was a business operating, a full-blown dairy [at the time of the adoption of the Zoning
Ordinance].
Guisto acknowledged, however, that the property was zoned residential in 1947.
NeJame noted that, since all parties agreed that the airport was zoned residential from 1947 forward,
in order to obtain grandfathered status, Guisto would at the very least have to show that the
entertainment uses he was talking about had existed since that date to the present.
Guisto said there was still some question about that, because, in 1947, there were no laws on the
books about having outdoor entertainment.
Discussion continued, with members attempting to clarify the proof that Guisto would be required
to furnish.
In the course of discussion, NeJame commented that a lot of the events Mr. Atwood talked about and
the other evidence furnished had to do with things which typically go on at an airport, such as air
shows. However, Guisto remarked that he had to get permits for the air shows, so he guessed these
weren't allowed [as a use accessory to an airport]. Guisto said that he was even told by [former City
Solicitor] Kathy Fallon that balloons were illegal, and he had to get permits for those. He expressed
frustration about the City "talking out of both sides of its mouth." He asked how people could have
a bicycle race without obtaining a Special Events permit, when he can't even have a craft fair?
Guisto complained that no one else had been required to furnish the type of proof he was being asked
for, commenting that, "Anyone else can do whatever they want in this City except me."
NeJame said he thought Guisto needed to show continuous entertainment uses since at least 1947.
Guisto said he had only three people with whom to establish such uses - Mr. LaFleur, Jim Raymond
and Roger Atwood.
NeJame also said he thought members needed to hear about more than just air shows.
Regarding the issue of what was legally pre-existing nonconforming, Patillo noted that Guisto had
stated at the meeting with the City Solicitor that the airport had started commercially in 1929.
Patillo said he looked at the zoning from that time, and there were three zoning districts in 1927, and
the airport was listed in a residential district. He stressed that the owners have clearly established
that they're an airport, so the only uses in question are the entertainment uses. If these were legally
pre-existing before 1927, and if the airport was in existence then and doing these events, "We
wouldn't be here," he commented.
3
After Patillo's comments, NeJame stated the conclusion that Guisto needed to show the existence
of entertainment events between 1927 and 1949.
However, Guisto pointed out that there was nothing in zoning [in 1927] which specifically banned
outdoor activities. He said that as long as a property was zoned commercial and not residential,
"You pretty much could do anything you want," since nothing stated that [businesses] were limited
to certain activities.
Patillo countered that the 1927 Zoning Ordinance stated that a business had to be established before
1927 as a legal commercial business [in order to be considered zoned for business]. He advised
members that Guisto had stated that the airport was there before 1929, but he stated that it did not
become a commercial airport until 1929, after the 1927 zoning. If there was no permit from the
Alderman from 1927 stating that airport could be there, then the airport was not a legal use at that
time, Patillo concluded.
Guisto asked if Patillo were saying that the airport was not legal?
NeJame responded that they were not talking about the airport, they were talking about entertainment
uses.
Guisto offered the argument that the 1927 zoning only contained two designations, commercial and
not commercial, without specifying a particular use. He pointed out that what was operating before
the airport was a dairy, which was commercial.
NeJame advised Guisto that members needed a sworn, notarized affidavit from Jim Raymond for
their next meeting. NeJame said that the Board also needed something to substantiate Guisto's claim
that the airport was zoned commercial before 1947 and information showing that, at least from 1947
on, entertainment uses did not cease for more than two years.
Ghiselin asked Guisto when he was first asked by the City to get a permit [for an entertainment
event]?
Guisto said that he was getting permits all the time from the Police Department and the City Clerk's
office, but the first time he was asked to get another permit was when he attempted to hold an
equipment auction in 1983 or 1984 but was told he had to cancel because it was illegal under zoning.
Discussion continued, with members discussing the basis for a determination that a particular use
is legally pre-existing nonconforming. NeJame noted that a question remained as to whether the date
[which entertainment must predate] was 1929 or 1947. Once this issue is clarified, Guisto must
prove that an entertainment event was held every two years, he summarized. Members agreed that
"entertainment uses" must be other than air -related events in order to qualify.
Guisto said he would bring an affidavit and Mr. Raymond in two weeks.
Ghiselin asked Mr. Atwood what the biggest event held at the airport was, and Atwood responded
4
that it must have been at least five thousand (5,000) people.
Patillo said he hoped members would continue to stick to the issues the appeal is based on and not
branch out comparing apples to oranges.
NeJame repeated that Board members would like Guisto to provide i) an affidavit from Mr. LaFleur,
ii) Mr. Raymond's testimony, iii) clarification as to whether the date entertainment must predate was
1929 or 1947 (from a review of the 1929 ordinance), and iv) information as to what events were held
every two years.
Patillo stressed that he had no problems with accessory uses related to the airport, such as
ballooning, skydiving, etc., so [the evidence] should focus on entertainment uses.
NeJame commented that, if members decide that entertainment uses are not grandfathered, Guisto
must go through a Special Permit process to allow outdoor entertainment.
Guisto made the final comment that he wondered why air shows were considered part of the airport
when he needed a Special Events permit to hold them? He observed that uses were ancillary to his
business when it was to the City's advantage and not ancillary to his business when it was not to the
City's advantage. He asked [City officials] to speak out of the same side of their mouth.
Guisto requested a continuance to June 3, 1998 at 7:00 p.m.
Snyder moved to continue the Public Hearing to June 3,1998 at 7:00 p.m. Ghiselin seconded.
The motion passed unanimously 3:0.
Bennett offered to put together a report highlighting the salient facts of the case.
A tr e -c
PY
Atte t: lkk,; City
- City
5
J U L 16 1998
CITY CLERKS OFFICE
NORTHAMPTON MA 01060
Clerk
of Northampton
Attest:�v J, ,City Clerk
City of Nor,_,,Ampton
Office of Planning and Development
City of Northampton
City Hall • 210 Main Street
Northampton, MA 01.5160 • (413) 587-1266
FAX (413) 587-1264 • EMAIL planning®city.northampton.ma.us
•Conservation Commission -Historical Commission
-Planning Board • Housing Partnership
-Zoning Board of Appeals Northampton Zoning Board of Appeals
Minutes of Meeting
May 6, 1998
The Northampton Zoning Board of Appeals held a meeting on Wednesday, May 6,1998 at 7:00 p.m.
in the Council Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street, Northampton,
Massachusetts.
Present were Members: Chair Mark NeJame, Vice Chair Alex Ghiselin and Larry Snyder.
Staff: Conservation and Land Use Planner Cynthia Williams, Board Secretary Laura Krutzler
At 7:00 p.m., NeJame opened the meeting, introducing the members of the Board.
At 7:00 p.m., NeJame opened the Continuation of the Public Hearing on an Appeal of the
Building Inspector's decision determining that the Northampton Airport is not
"grandfathered" for outdoor entertainment uses filed by Northampton Airport, Inc. for
property located at Old Ferry Road, Northampton, also known as Northampton Assessor's Map
25, Parcels 1, 15 - 19, 53 & 71.
NeJame read a letter from the applicant requesting a continuance to May 20, 1998.
NeJame noted that, since the last hearing, there had been correspondence related to the application.
He read into the record a letter from himself to Richard Guisto dated April 29, 1998.
Ghiselin moved to continue the Public Hearing to May 20,1998 at 7:00 p.m. Snyder seconded.
The motion passed unanimously 3:0.
At 7:04 p. ., eJame opened the Public Hearing on a request filed by Jose mont for a
Special Permit to to uitar lessons as a Home Occupation under S 5.2, 10.10:and 11.11
of the Zoning Ordinance fo erty located at 62 Gilrain T ce, Florence, also own as
Assessor's Map 29, Parcel 59.
NeJame read the legal notice and expl ' eQ a proce would use in conducting the hearing.
Representing the a t, Michael Zachary Edelstein of 25 Mai eet, Northampton,
explained th eph Belmont is asking to teach one -on one guitar lessons to pn students by
ORIGINAL PRINTED ON RECYCLED PAPER
Office of Planning and Development
City of Northampton
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 587-1266
FAX (413) 587-1264 • EMAIL planning®city.northampton.ma.us
*Conservation Commission *Historical Commission
-Planning Board • Housing Partnership
*Zoning Board of Appeals
Northampton Zoning Board of Appeals
Minutes of Meeting
April 15, 1998
The Northampton Zoning Board of Appeals held a meeting on Wednesday, April 15, 1998 at 7:00
p.m. in the Council Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street,
Northampton, Massachusetts.
Present were Members: Chair Mark NeJame, Vice Chair Alex Ghiselin and Larry Snyder.
Staff. Conservation and Land Use Planner Cynthia Williams, Board Secretary Laura Krutzler.
At 7:00 p.m., NeJame called the meeting to order. NeJame introduced the members of the Board
and read the legal notice advertising tonight's hearings.
At 7:42 p.m., NeJame opened the Public Hearing on an Appeal of the Building Inspector's
decision determining that the Northampton Airport is not "grandfathered" for outdoor
entertainment uses filed by Northampton Airport, Inc. for property located at Old Ferry Road,
Northampton, also known as Northampton Assessor's Map 25, Parcels 1,15 -19, 53 & 71.
NeJame read the legal notice.
Richard Guisto stated that he disagreed with the Building Inspector's decision. In support of his
position, Guisto briefly outlined the history of the airport and entertainment events conducted at the
site, explaining that the airport was in existence in the late teens and opened up commercially in
1929. Guisto said that, in the 1920's, the airport had regular air stops in barnstorming events,
including visits from famous pilots such as Charles Lindbergh and Amelia Earhart. In the 1930's
and 40's, naval trainings were conducted at the airport, and the airport hosted USO dances and
parties. There has not been a time when some kind of entertainment event has not appeared at the
airport, Guisto maintained.
As additional support, -Guisto pointed to the fact that entertainment events at the fairgrounds,
including concerts, are protected under "grandfathering" provisions. Guisto commented that the
fairgrounds, last concert in 1978 was a fiasco, while the airport has never had a problem. The
ORIGINAL PRINTED ON RECYCLED PAPER
airport's ability to park vehicles is superior to anyone else's, he contended, saying the airport can
handle parking for almost six thousand (6,000) cars. In contrast, the fairgrounds can not park that
many cars without using somebody else's land, and the fairgrounds' practice of stopping cars to
make drivers pay a parking fee backs cars up on the highway into Holyoke, Guisto said.
Guisto explained the history of his appeal, informing members that he had applied for grandfathered
status and been denied by Building Inspector Anthony Patillo. Guisto said he had discussed the
matter with former Senior Planner Paulette Kuzdeba and Patillo, and the earliest zoning map he
could find was a 1947 map showing the airport zoned business and the fairgrounds zoned residential.
However, Guisto said that he was claiming grandfathered status from before that date.
Guisto also took issue with the City's interpretation that the fairgrounds is grandfathered for
entertainment uses because the fairgrounds is an entertainment use, while entertainment events at
the airport are in conjunction with the airport's business. Entertainment ig in conjunction with the
fairground business, too, he maintained. "A fairground is a fairground in my opinion, it is not
entertainment," Guisto commented. Following this line of reasoning, he argued that, if
entertainment at the fairgrounds is protected by "grandfathering" provisions, entertainment at the
airport should be, too, since balloon rides and sky diving are also entertainment. "All we're asking
for is equal treatment," he commented.
In the course of his comments, Guisto alleged that "basically, the City has problems with the airport
and me." He said he was specifically appealing to the Zoning Board to look at the situation and tell
him why the fairgrounds could have entertainment [as of right] and he couldn't.
When asked specifically what he would like permission for, Guisto said basically what he has been
doing - air shows, car shows, etc. He said he was looking to handle six thousand (6,000) people
maximum and was not looking for "Lollapaloosa."
NeJame said he assumed Guisto could do air -related events, but this was different from doing music
concerts and auto shows, which is a little broader.
Guisto clarified that he has obtained a permit for every event held at the airport in the past but, if
grandfathered, he would not have to get permits but would be able to hold events by right. In
response to a question from Ghiselin, he said he began getting permits twelve years ago, in 1985 or
1986, when [then Building Inspector] Budgar informed him that he could not hold an auction of
heavy equipment at the airport because it was not allowed by zoning. Guisto jestingly referred to
the regulation requiring a Special Permit for special events as the "Northampton Airport Law,"
saying that the application process is so difficult that the Lion's Club decided not to hold their car
show at the airport this year.
Ghiselin clarified that an illegal use is never grandfathered, so Guisto would have to go back to some
point before zoning and prove that there was entertainment at the property at that time. Guisto said
he understood this.
Patillo.,intedected, that the property was zoned residential in 1927, so entertainment events at that
-� 2
time would have been illegal.
Ghiselin asked if Guisto had any historical evidence that there was entertainment at the property
prior to zoning?
Guisto said that he had sworn affidavits from James Raymond and Mr. and Mrs. LaFleur, but not
[attesting to activities] prior to 1927. All he had before then were some photos, Guisto said. He
repeated that there is no zoning map before that time - the earliest map is dated 1947.
Guisto also disagreed with Patillo's conclusion that entertainment events conducted in 1927 were
illegal. He referred to the fact that the 1927 Zoning Ordinance said that any land used for business
at the time of the adoption of the ordinance would be zoned for business. He asserted that the airport
property was a business before the introduction of zoning, since the LaFleur's operated a farm at the
property which bottled and sold milk, and this was the use of the property in the late 1890's. He
asserted that because a person could walk in and buy a product, the operation was a business. Guisto
concluded that entertainment events therefore occurred legally back then.
At NeJame's invitation, Building Inspector Anthony Patillo summarized the events leading up to the
appeal. Guisto filed a Zoning Permit Application in May of 1997 to establish whether the airport
was grandfathered for entertainment uses, Patillo related. Patillo asked Guisto to supply him with
documentation of entertainment uses prior to 1974, since he was under the impression that the airport
was established in that year. The information supplied to him proved that all the uses being
conducted were not legal uses, Patillo said, noting that Guisto was cited for the auction and had to
obtain Special Permits for other entertainment uses. Guisto complained that City officials were
dragging their feet and withholding an opinion, so Patillo called a meeting with Kuzdeba, City
Solicitor Janet Sheppard and Leon Malinofsky (Guisto's attorney). At that point, Patillo said he was
told that the airport was established in 1929. Therefore, in order to determine pre-existing
nonconforming status, Patillo said he looked at the zoning requirements at that time to establish
whether [entertainment uses] were legal or not. The information he found stated that in 1927, there
were three zones - Non -residence district, General Residence district, and Single Residence district.
Patillo said that Guisto could only establish that the airport had been used as an airport, since the
associated uses he talked about, barnstorming, etc., were all uses associated with an airport.
Patillo also pointed out that Section 2 (E) of the 1947 Zoning Ordinance stated that any aviation use
required a permit from the Board of Alderman. He said he checked with the City Clerk's office, and
the airport never even received a permit for the aviation use. However, he clarified that nobody is
disputing the fact that there was an airport there, the issue is entertainment and accessory uses
connected to the airport.
Regarding Guisto's comparison ofthe airport to the fairgrounds, Patillo described this as "comparing
apples and oranges." He said -that the uses accessory to an airport, such as ballooning, parachuting,
etc., were clear and concluded that the information provided to him, in his opinion, did not justify
an entertainment use.
Patillo reiterated that, if the airport were established and doing entertainment after 1927, there
3
should have been a permit on record from the alderman. Barring any information such as that, he
said that he could not support having entertainment use at the airport.
As discussion continued, Patillo supplied the following information:
---- The first Zoning Ordinance was enacted in 1927 and amended in 1929.
---- Zoning maps from 1947 state that the airport is zoned residential.
---- The 1927 Zoning Ordinance states that, "no parcel of land lying in any residence
district and not at the time this ordinance becomes effective devoted to any
business or industry, other than those specified in Section 1 shall hereafter be
used for any business or industry... "
Patillo said that if Guisto had evidence that entertainment uses were occurring before 1929, "we
would like to see it."
Patillo said that the fairgrounds was zoned business and added that, contrary to Guisto's opinion, the
fairgrounds could supply documentation from local newspapers for ongoing entertainment uses
dating to the 1800's, and this use was never discontinued. With regard to the milk business Guisto
referred to, Patillo pointed out that once a use is discontinued for more than two years, it is no longer
a legal use. The fairground has been "a continuous on-going operation" which has had bands and
entertainment going back prior to any of the City's zones, Patillo commented. The fairgrounds is
also not in a Special Conservancy district, he noted.
Members asked questions to clarify the information which had been presented, and Ghiselin stated
that, since members had just received information, they were not prepared to decide tonight.
Guisto provided the additional information that the airport was licensed as a commercial airfield in
1929, but, prior to that [and before zoning], the site was an airfield where people flew in, had rides,
and were fueled. He said that there was no permit from the Board of Alderman because the use was
grandfathered.
Regarding the fairgrounds, Guisto pointed out that they are in an Urban Residential zone where
zoning does not allow outdoor commercial activities. He asked rhetorically if a fair constituted a
rock concert? He questioned the fact that the fairgrounds are allowed to have a concert after not
having had one since 1978, asking whether the policy wasn't "use it or lose it?" He stressed that
he was not complaining, since he thought the uses should be allowed; he just wanted to be treated
the same way.
NeJame confirmed that all were in agreement that the property's use as an airport predated zoning
and clarified that the issue in question was whether uses not accessory to an airport, i.e. -
entertainment uses, should be considered grandfathered. He advised Guisto that members must see
something saying that there were events going on not related to the airport before 1929. He
suggested that Guisto request a continuance to allow him to submit further information.
4
Guisto asked if Zoning Board members would consider sworn documents from people alive at the
time [as evidence]? NeJame said that he had not researched what type of evidence would be needed.
Patillo noted that, at the meeting referred to, City Solicitor Sheppard had expressed the opinion that
sworn affidavits could be accepted as evidence.
NeJame asked staff to check on this question.
NeJame asked if there were any public comments?
Alvin Rejniak of Coles Meadow Road, Northampton, commented that, during World War II, the
airport used to have big air shows and barn drives for the American Legion. He said he remembered
Navy kingpins coming and cutting the grass, and "the thing backfired and set flame to the grass."
He confirmed that the airport did have bands there and had entertainment in the 1940's, especially
barn drives. Rejniak also said there was a slaughterhouse at the end of the airport which was shut
down because it didn't pass state inspections.
Snyder moved to continue the Public Hearing to May 6,1998 at 7:00 p.m. Ghiselin seconded.
The motion passed unanimously 3:0.
A tr e c py
b � a
Att t: -to,City
City
0
JUL 16 1998
CITY CLERKS OFFICE
NORTHAMPTON, MA 01060
Clerk
of Northampton
y DECISION FOR AN APPEAL OF THE BUILDING INSPECTOR'S DECISION
UNDER MGL CH. 40A, SECTIONS 8 AND 15
unanimously
On June 17, 1998 , the Northampton Zoning Board of Appeals voted: 3:0
:0 To
dimpton.
everse the determination of the Northampton Building Commissioner that the
Airport is not entitled to a so-called "grandfather" exemption from zoning
regulations allegedly prohibiting outdoor entertainment uses such as band concerts, car shows,
games, festivals, etc:
Decision Made: June 17, 1998
Decision Filed With the City Clerk's Office on: July 16, 1998
Anyone aggrieved of the decision may file an appeal in accordance with MGL Ch 40A, Section 17, with the
Hampshire County Superior Court or the Hampshire County District Court and file notice of said appeal with the
City Clerk within twenty (20) days of the date that this decision was filed with the City Clerk.
This decision shall not take effect until a copy of the decision bearing the certification of the City Clerk that twenty
days have elapsed after the decision has been filed, or if such an appeal has been filed, that it has been dismissed or
denied, is recorded in the Hampshire County Registry of Deeds or Land Court, as applicable, and indexed under the
name of the owner of record or is noted on the owner's certificate of title. The fee for such recording or registering
shall be paid by the owner or applicant. It is the owner or applicant's responsibility to pick up the certified decision
from the City Clerk and record it at the Registry of Deeds.
o1@a0dR
. [� I
JUL 16 1998
CITY CLERKS OFFICE
NORTHAMPTON, MA 01060
In Upholding the Decision of the Building Inspector, the Zoning Board made the following
determinations:
I. The first Zoning Ordinance took effect September 26, 1927.
H. Under the 1927 Zoning Ordinance, the area of the airport was designated as a Residence zone.
III. The airport became a commercial entity in April of 1929; therefore, the commercial airport use
of the property did not predate zoning.
IV. The appellant failed to show that non air -related outdoor entertainment events (i.e. -
entertainment other than flying circuses, barnstorming, etc.) were taking place prior to the
introduction of the first zoning ordinance and continuing to the present and, therefore, legally pre-
existing nonconforming.
V. From 1927 to the present, the zoning of the airport has remained residential, so any additional
commercial uses introduced after 1927 (such as entertainment) would not be protected under
"grandfathering" provisions.
VI. Although the airport has had a history of hosting entertainment events on a continuous basis
since at least the 1970's, such uses were not legally protected under zoning. This is supported by the
fact that the airport began obtaining permits for entertainment uses beginning in the 1980's.
VII. The applicant requested a ruling from the Building Inspector on whether all outdoor
entertainment uses on the airport property were legal as pre-existing nonconforming uses. The
Building Inspector acted correctly in ruling that outdoor entertainment uses at the airport are not
entitled to "grandfathered" status. In order to legally hold outdoor entertainment under current
zoning, the appellant must apply for a Special Permit to allow an Outdoor Commercial Recreation
Use.
D
J U L 16 1998
CITY CLERKS OFFICE
NORTHAMPTON, MA 01060
A true
Attest ,City Clerk
City of Northampton
LEON W. MALINOFSKY, JR.
ATTORNEY AT LAW
1 82 MAIN STREET
NORTHAMPTON, MA 0 1 060 - 3104
TELEPHONE (41 3) 584-7950
FAX (413) 582-1865
EMAIL LWM @ MAP.COM
5 June, 1998
TO: The Honorable Members of the Zoning Board of Appeals
RE: Application of Northampton Airport Inc for grandfather exemption
Sirs:
This letter summarizes Northampton Airport, Inc.'s arguments of fact and law in
the matter taken up for hearing last June 3`d. No attempt is made to summarize or
recreate the testimony offered in hearing.
It is the situs of the present Northampton Airport for which the applicants seek
grandfathering, and not their business. The Board may find the situs has been in
continuous use for entertainment activities for every year since minimally 1925. For
the present purposes, entertainment activities should be considered events or spectacles
of public interest which draw or may be expected to draw participants or spectators. In
the following diagram, the shaded boxes track the lawful right to outdoor activities of
the type and manner claimed.
Year Situs Uses Situs Ownership / notes
1925
Flying Circe
Ba�� l"9
Dances
A"`�om
Flea Markets
Polka Bands
Bands
Car shows
Ente Inment
LaFleur commercial dairy and bottling facility.
1926
1927
Fit Zoning Law—possible date. Ac&Aes are already onaoina n situs.
1928
1929
First Zoning Laves -possible date. Activities are already onooina on situs.
1930
1931
1932
33-`97
Northampton Airport incorporates, establishes a business at situs.
Today this situs
is owned by the
Northampton
Airport, Inc.
G.L. Ch. 40A, section 6 provides in part that
"Except as hereinafter provided, a zoning ordinance or by-law shall not
apply to structures or uses lawfully in existence or lawfully begun, or to a
building or special permit issued before the first publication of notice of the
public hearing on such ordinance or by-law required by section five..."
The shaded box above shows entertainment uses ongoing at the situs since 1925,
as may be found from evidence offered at hearing. The applicants observe that such
activities are "uses... lawfully in existence or lawfully begun" within the said section,
conferring nonconforming use status for such activities on the situs, currently owned by
the Northampton Airport, Inc. The right to such uses logically, and in law, follows the
shaded boxes.
The current owners of the situs (applicants) seek the following determination:
That the situs may be used by its owners for events of the general kind set forth in the
"Events List" presented at the June 3`d hearing. Such uses are, by their nature, activities
or spectacles of general interest which may be expected to draw participants or
spectators.
Please contact this office for any further desired information.
Yours sincerely,'
Leon W. Malinofsky, Jr.
111 1 51987 ;
L
APPLICWMCG
O 1
DEPT Of
FILE # _in �
PROPERTY LOCATION:
MAP 21�
THIS SECTION FOR -OFFICIAL USE ONLY:
PERMIT APPLICATION CHECKLIST
T L'T1 /ITTT ENCLOSED REQUIRED DATE
THE FOLLOWING ACTION HAS BEEN TAKEN ON THIS
proved as presented/based on information presented
CATION:
Denied as presented: Use f C ntec"L( 4- je tecM,^Qc�
.Special Permit and/or Site Plan Required under: §
—1 LANNING. BOARD ZONING BOARD
Received & Recorded at Registry of Deeds Proof Enclosed
Finding Required under: § w/ZONING BOARD OF APPEALS
Received & Recorded at Registry of Deeds Proof Enclosed
Variance Required under: §—W/ZONING BOARD OF APPEALS
Received & Recorded at Registry of Deeds Proof Enclosed
Other Permits Required:
Curb Cut from DPWv U
Water Availability Sewer Availabili
.' Sep€fc `' PPro-al-;Ba_ot
nea1 Well Water Potability -Bd Health MSR 1 3 1998
!Permit from Conservation ommission
-0a CITY CLERKS OFFICE
Signature
La«
zoning requirement= and NOTE: Issuanoe of a zoning permit does not relieve an applioant's burden to oompty with all
ommiss on Departme t of Publtain tol required Works and othersfroma pll the Board t Health. Conservation
pplioable permit granting authorHles.
MAY 1 5 1997
I .
PT OF $UILDING INSPECTIONS File No
NORTHAM. +4; f
TC:tA, f jr
- - ........_ ._._......�._ ;
ZONING PEP -MIT APPLICATION (§10.2 )
��WE TYPE OR _ INT ALL INFORMATION
1. Name of Applicant: I -X- t V
AddressTelepho
2. Owner of. perty: 0 C) n
Address: Telephone -�
3. Status of Applicant: Owner Contract Purchaser Lessee
Other (explain):
4. Job Location:
Parcel Id: Zoning Map# Parcel# District(s):
(TO BE FILLED IN Y THE BUILDING DEPARTMENT)
5. Existing Use of Structure/Property
R
Description of Proposed Use/Work/Project/Occupation: (Use additional sheets if necessaro-
7. Attached Plans: Sketch Plan Site Plan Engineered/Surveyed Plans
Answers to the following 2 questions may be obtained by checking with the Building Dept or Planning Department Files.
8. Has a Special PermiWadance/Finding ever been issued for/on the site?
NO DON'T KNOW_ Ik-� YESIF YES,
IF YES: Was the permit recorded at the Registry of Deeds?
NO DONT KNOW__ Z�C YES_ _
IF YES: enter Book Page and/or Document #
9. Does the site contain a brook, body of water or wetlands? NO DON'T KNO I
. IF YES, has a permit been or need to be obtained from the Conservation Commission?
Needs to be obtained Obtained
date issued:
(FORM CONTINUES ON OTHER SIDE)
Mr~R 13 1998
CITY Ct F� FFICE
NORTHAMPTON, MASS 01060
W YES
0
10. Do any signs exist on the property?
IF YES, describe size, type and
YES_,t <--
NO
Are there any proposed changes to or additions of signs intended for the property? YES NQQC
IF YES, describe size, type and location:
11. ALL INFORMATION MUST BE COMPLETED, or PERMIT CAN BE DENIED DUE TO
LACK OF INFORMATION.
This aolu= to be Pilled is
by the Buildia9 Ikpartmeat
I I IlRequired
EYiStinri I D. ------ 4 1
Building height
Bldg Square footage
%Open Space:
(Lot area minus bldg
&paved parking)
f ..Pt Parking spaces
.. fl
#' 'of Loading nnnira
Fill:
':(vol -time--& location)
13. Certifianon: I hereby certify 1 that the info r II I
Gj is tru / an accurate to the best of my know dge. c°nta ' d ein
D2II'E:/ APPLICANT's SIGNATURE
NOTE: 14 ano zoning permit does not relieve a
zoningir ants and obtain ail required p ioant's burd o ply wititt -01
Commission, Department of Public Work= and otheirsa rom the Board o saith. Conservt�tic
ppiioable permit granting authoritios.
FILE #
February 25, 1998
Northampton Airport
Old Ferry Rd.
Map 25 Parcel 15&71
Dear Mr. Giusto,
I have reviewed your application for a decision as to whether the airport is "grandfathered
" for entertainment use beyond the accessory uses associated with an airport. Paulette
Kuzedba , Senior Planner, and myself, reviewed the files, maps, and Zoning Ordinances
for the City of Northampton going back to 1927. The information that we found clearly
indicates that the use of the airport for any thing except as a airfield and accessory uses
connected directly with aviation are the only uses permitted. The Zoning Ordinance from
1927 state (copy enclosed) there were three zoning districts, Non -residence, General
Residence, and Single residence districts. The Airport at its inception was in an area that
was a residence district. The Zoning Ordinance from 1927 read.." Section 2 ... no parcel
of land lying in any residence district and not at the time this ordinance becomes effective
devoted to any business or industry, other than those specified in Section 1 shall hereafter
be used for any business or industry,......" Since the airport by all records was started in
1929 this is the ordinance that was in effect which the airport would have to comply with
as being a pre-existing non -conforming use.
Enclosed you will find a zoning map dated October 8, 1948 which also shows the airport
in a residence district. Any expansion beyond the original use as a airfield would have
required a permit from the alderman and our records indicate no permit was ever issued.
Therefore the uses that were not subordinate and incidental to the principal use of the
airport were illegal uses and cannot be considered as grounds for being grandfathered as a
pre-existing non conforming use because the uses never were legal.
Therefore I am denying your application that the airport is grandfathered for entertainment
uses not associated with the accessory uses as an airport.
Sincerely,
Anthony Patillo
Building Commissioner
City of Northampton
CC. M Kerns, J. Sheppard, P. Sullivan, L. Malinofsky
yAP 13 1998
CITY CLERKS OFFICE
NORTHAMPTON, MASS 01060
4.
BOARD OF ASSESSORS
ASSESSORS - _ 4ttUwP� �``•
dc�ba y
Joan C. Sarafin, MA.A., Chairwoman a Telephone
Robert C. Buscher, Secretary f 586-6950 Ext. 200
Edwin M. Padeck e
WALLACE J. PUCHALSKI MUNICIPAL BUILDING
212 Main Street
Northampton, MA 01060
TO: THE NORTHAMPTON BOARD OF ASSESSORS
FROM: (Z +ASD l'i w51x) ) c/p A7T-f, , L lz-&nJ w . M A i- i N c F's Ky 13 -JZ .
(Individual or Company Name) Is z- 7757 -77
01060
PHONE
DATE: (3 MA9—C tI 2 I -N9 ?
I/WE REQUEST FROM THE BOARD
OF ASSESSORS, ABUTTERS LISTS FOR THE PROPERTY
LOCATED AT A&AP J R2-17 P/+P—czcs 1,S-4-71
C ?Ta, -4 A iX?-P--r, oLD Pi -g.
THE MAP AND LOT NUMBER(S) OF THE ABOVE PROPERTY ARE
THE NAME OF THE BOARD(S) REQpUESTING THIS LIST IS*
1. N�ti� . DA, P- Z-3� o APPCAL O LS �I l5 l'1 L5
2.
FMAR 1 3 1998
3.
CITY CLERKS OFFICE
THE LIST IS REQUIRED FOR THE FOLLOWING P R NORTHAMPTON MASS 01060
U POSE.
�fftAF t)2If- lo•v
THE NUMBER OF COPIES OF THE LIST REQUIRED IS
I UNDERSTAND THAT THE BOARD HAS UP TO SEVEN (7) WORKING DAYS IN WHICH TO
COMPLETE THE LIST. REQUESTED, AND WILL HAVE AN ADDITIONAL SEVEN (7) WORK—
ING DAYS FOR EACH SUBSEQUENT REQUEST.
I FURTHER UNDERSTAND THAT I AM RESPONSIBLE FOR ANY ERROPA CONTAINED HEREIN.
(Signature of Applican )
DATE LIST WAS COMPLETED` Off® SSou
*IF YOU ARE UNSURE OF THE BOARDS REQUIRING THE ABUTTERS LISTS OR THE NUMBER•
OF LISTS REQUIRED PLEASE CONTACT THE APPROPRIATE DEPARTMENT.
City of Northampton, Massachusetts
Office of Planning and Development
City Hail • 210 Main Street
Northampton, MA 01060 • (413) 586-6950
FAX (413) 586-3726
• Community and Economic Development
• Conservation • Historic Preservation
• Planning Board • Zoning Board of Appeals
Northampton Pa-ALLC i3117GS, VARIANCES & ZBA SPECIAL PERMITS
Permit Issued by:
Zoning Board of Appeals
Map ID
File #
Date Submitted , a� /,f, i9?8'
OPD Staff Review for fee and completeness & B.I. signature
Planner Review ✓
Set up Public File Folder /
Legal Notice Gazette
(Notice 7 and 14 days before hearing)
Legal Notice Posted
Letter to Owner
Letter to Abutters/Towns
COPY OF to B.I.
APPLICATIONS Copy to DPW
SENT TO: Copy to B of H
Copy to C.C.
Copy to Fire Dept. _
Copy to P.B. Members
Planning Board Meeting
Copy to ZBA members
P.B. recommendations to ZBA members
ZBA Hearing
ZBA Decision
Decision filed with City Clerk
Decision mailed to:
Owner/Abutters/Towns
Decision to DPW
Decision to B.I.
Permit entered on computer
Decision filed OPD
(Memorex: ZBAInstr 4/3/92)