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18D-053 (38)
JEKANOWSKI & O'NEIL 1 ATTORNEYS AT LAW TELEPHONE LEONARD G.JEKANOWSKI MILLBANK PLAGE 413-586-5000 WILLIAM J.O'NEI r�� TE 08-08 2p___ , 351 PLEASANT STREET 413-Sae-o631 D a-- , THAMPTON,MA 01060-3900 • JUN 2 ( June 18 , 1996 r[F-i^F °".;'..r. -7;TiONS Building Commissioner Anthony Patillo Municipal Building Northampton, MA Re: Your File No. 960651 River Run Real Estate Management Office 80 Damon Road Hampshire Property Management Group (HPMG) Dear Building Commissioner Patillo: Herewith as promised, and for your review when you have the opportunity, is an Affidavit from Patricia Taylor. As the Affidavit reflects, unlike Mr. Madowitz and myself who are relatively new to the River Run situation, Ms. Taylor has a long history in that office. I hope and trust that her information, both as to her twelve years and before, will be of assistance to your office and that it will serve to establish, among other things, that that office has (probably for over two decades) been used both to manage what is now River Run and for many other off-site purposes, that this off- site use was occurring during years when the zoning of the parcel clearly allowed that as a matter of right, and that the present use is not in any real sense a change of use. As always, thank you for your courtesies, cooperation and assistance. Respectfully submitted, .1,Y--- A e" ,;Le William . O 'Neil WJO: ehw cc: Hampshire Property Management CITY OF NORTHAMPTON OFFICE OF THE BUILDING COMMISSIONER File No. 960651 In the matter of River Run Office AFFIDAVIT I, PATRICIA TAYLOR, being duly sworn, do depose and say as follows. 1. This affidavit is submitted based on the following. a. I have worked in the office in question continuously to date since 1984 , two years prior to the conversion of the complex to condominiums, in the same space that has always been used for management of this complex, but for other purposes as well (see below for some specific examples) . I was hired in 1984 as assistant manager and promoted to manager in 1985. b. During all of that time I not only came to have direct personal knowledge of all operations 1984 to date, but in addition, by the nature of my duties and by virtue of having access to the office's files and records, I also came to know much of how the office functioned prior to 1984 . 2 . Files and records within the office dated as early as April 1980 reflect the following. The property was owned or otherwise controlled by Cheshire Management Company of Wallingford, CT (also d/b/a Northampton Associates) until the 1 sale and conversion in 1986. Cheshire was also the owner of numerous other properties: in Connecticut, Texas and New York. 3 . When I was hired in 1984 , Susan Downes was Cheshire ' s property manager, working on site to manage Hampton Manor, but also performing other work for Cheshire. For example, she was very involved in the acquisition, rehabilitation and general management of a complex outside of Albany, NY, while working out of the River Run office. 4 . In addition Cheshire's regional manager was regularly at our office and used it as a base of operations for dealing with other Cheshire properties. 5. In 1986 the complex was sold to a group of investors from Boston. They created an entity called Northampton Trust to take title to the property, and there was an entity called Eric Management (with owners and officers in common with the Trust) to manage the property. 6. Critically, also in 1986, two members of Northampton Trust, along with a third person, purchased Coachlite Apartments and converted them to condominiums. Eric Management managed Coachlite as well . I also then became the property manager for Coachlite, with all my work still being done out of the River Run office. The Coachlite complex had no onsite office, and common area maintenance at both properties was done by the 1 maintenance staff at River Run. In fac Coachlite also paid a substantial portion of our office' s phone bill (my memory is 2 that it was 40%) as reflective of the extent to which the office ' s activities involved Coachlite. The amount of activity relative to Coachlite was so significant that in 1988 a separate individual was made manager of Coachlite, but she at all times functioned out of the River Run office. 7 . In addition in 1987, there was begun yet another business, Valley Real Estate Management, which also ran out of the River Run office, and which managed the Clark Avenue Condominiums relative to general administration and to both interior and exterior maintenance. Again, all of this was being done out of the offices at River Run. 8 . In essence, given that Hampton Manor (River Run) is such a large complex and has always involved ownership by groups of large investors, mainly from other areas, and given that the office in question was very significant in terms of physical size and staffing, that office has regularly been used as the base for administrative and maintenancr services for other properties, both within the area and outside the area. Signed and sworn under the pains and penalties of perjury. • n,L PAT CIA TAY 3 p f JEKANOWSKI & O'NEIL �' . MAY 3 ! 1996 ; ATTORNEYS AT LAW TLIFPHONE LEONARD C.JEKANOWSKI MILLBANK PLAGE _.._ 4 a 13-Se-59OO WILLIAM J O'NEIL -TELEFAX 351 PLEASANT STREET 413-5B6-0631 NORTHAMPTON,MA 01060-3900 May 31, 199 . Office of the Building Commissioner Municipal Building Northampton, MA (by hand delivery) Re: Your File No. 960651 River Run Real Estate Management Office 80 Damon Road Hampshire Property Management Group (HPMG) Gentlemen: I am writing on behalf of HPMG relative to the above. Initially, I want to apologize sincerely for our delay in this matter. That has not occurred because of HPMG. Rather, my office and my schedule have been uniquely hectic this spring, and we have been pretty much in a mode of tending to emergencies until the anticipated summer slow-down and simply had not gotten back to this matter. Clearly no disrespect of the municipal process or of its officials was in any way intended. I have now, however, begun in earnest the process of researching and preparing this matter as thoroughly as possible. As a result I would respectfully request your office's response and advice as to the following. Your office' s position has been that we need a finding under § 9 . 3 (relative to pre-existing non-conformity) . I note, however, three matters. (1) Assuming non-conformity, I am advised and believe (based on information from persons with both personal and other knowiedge of the building, including personal knowledge and experience pre-dating the 1986 conversion of the complex into condominiums) that for a purposes of the Zoning Ordinance the activities and use of the premises have been the same for all practical and applicable purposes since the construction of the complex and of the subject building about twenty-five yearo, (2) The activities and use of the subject premises would seem to be accessory and thus permissible under Section 5. 3 . Gam,,4-c.y �,risi i�✓(o .�-�n- o....E�4�w /O�i 0� . Office of the Building Commissioner May 31, 1996 Page two (3) The property is in a GI zone. That zone allows as of right (1) "miscellaneous . . . business offices and services including, but not limited to . . . real estate" and more generally (2) "business service . . . establishments" (Table of Use Regulations - Retail Service Commercial , 12 and 14) . The use then seems permissible as of right and not non- conforming. In the event that you may concur with any one or more of the above, it would seem that a board process and hearing can be avoided. But, given the timing of things to date, and while it may be that your office will need time to process the above, I shall prepare and file with the ZBA very early next week (no later than Tuesday) unless I hear from you to the effect that I should defer that. As always, thank you for your courtesies, cooperation and assistance. And again my sincere apologies. Respectful y submitted, William J. Neil WJO: ehw William J. O'Neil Attorney at Law 351 Millbank Place Northampton, MA 01060 June 7 , 1996 Subject: HPMG 80 Damon Rd. Dear Mr. O'Neil, I am responding to the three matters that you raised in your letter dated May 31 with regards to non-conformity. a. " . . . .that for all purposes of the zoning ordiance the activities and use of the premise have been the same for all practical and applicable purposes since the construction of the complex and of subject building about twent-five years ago. " C,1C b. " the activities and use of the subject premises would seem to be accessory and thus permissible under Section 5 . 3 . " c. "The property is in a GI zone. That zone allows as of right (1) miscellaneous buisness offices and services including, but not limited to. . . real estate" and more generally (2) "buisness service. .establishments" (table of use and regulations-Retail Service Commercial, 12 and 14) . The use seems permissiable as of right and not non-conforming. ,' lase, r,esAvicto VI-Corkorm)r� On- v ,ncc MQ,rtt- all° e.� (q� c Ccan 5 vim. p� ) v 60 CA Uva--)L . '5Ite, IatilC"r' 0. rind) wn CUA '�47u�r) c ,o arr► CPleve to ►'-,r, no,l-C14 v-r sik (n. 5:±A, wO0.-Qc, etacey,sorq . o- $T ic. e1) t►nCL4-- s William J. O'Neil Attorney at Law 351 Millbank Place Northampton, MA 01060 June 7 , 1996 Subject: HPMG 80 Damon Rd. Dear Mr. O'Neil, I am responding to the three matters that you raised in your letter dated May 31 with regards to non-conformity. a. " . . . .that for all purposes of the zoning ordiance the activities and use of the premise have been the same for all practical and applicable purposes since the construction of the complex and of subject building about twent-five years ago. " b. " the activities and use of the subject premises would seem to be accessory and thus permissible under Section 5 . 3 . " c. "The property is in a GI zone. That zone allows as of right (1) miscellaneous buisness offices and services including, but not limited to. . . real estate" and more generally (2) "buisness service. . establishments" (table of use and, regulations-Retail Service Commercial, 12 and 14) . The use seems permissiable as of right and not non-conforming. " /i4....,:i 7 A. 4/0„, ( v47a0r•-7*✓60D ' 4'37 7-�c , '- ;,v /9cV:; 01 OS/2 :7 i-o/.i7 ,i .-^AeA-/ /fu "y eiS (C79= Ali9z-77,<:' Ory.,..,,60?ser.o."_-r- /-2-/- „./. 3-,56 e 2--- i'/7,c-- A-A;577 , i4/, f T ,9ti i?7-s /s . - ' _"- tom r----' ti°4./ cb,,Rm',,A5 US= a!) ©,-- , /S , ,F-ssooe oar /72 � `',2 �;,'- ��, W0„�,o ,�r��,� sew re o� -� Akore,-/-1.4,.; • ♦ • Unofficial copy of the present zpning ordinance, compiled by the Planning Department, September 16, 1974 1 • (.) C.44.. C.44 REVISED ORDINANCES Or NORTHAMr oN C.44 { CHAPTER 44 11 • ZONING ORDINANCE . lr _ , SecrmN ADMINISTRATION AND ENFORCEMENT > 1. Purposes. 11 • 7 2. Enforcement. 1: 2A. Certification of occupancy. 21 2B. Invalid certificate or permit 2 f 3. Exceptions. 2 i 4. Board of Zoning Appeals. 2 i I 4A. Appeals to Board of Appeals. 2 4B. Powers and duties of Board of Appeals. 2 4C. Appeals; procedures, etc. • 2 1 4D. Rules; meetings; hearings; records, etc. 4E. Reversal, etc.,of orders, etc.; form of vote. : •i 4F. Reconsideration of appeal or petition. 2 • 1 4G. Appeals to Superior Court. t • b. Penalty. 6. Validity. i 1 7. Effective date.s DISTRICTS AND DEFINITIONS 8. Districts established. I 9. District boundaries. •• So1Q. Definitions. , RESIDENCE "A" i11. Definitions,exceptions,eta th i an RESIDENCE "B" n • 12. Definitions,exceptions,etc. VC i I PC tI' RESIDENCE "C" : s m i 18. Definitions,exceptions,etc. � Al € 1 BUSINESS tc 14. Definitions,exceptions,etc. 1 BUSINESS "A" • 14A. Definitions, exceptions, etc. INDUSTRIAL 1 • 15. Definitions,exceptions,eta ? 272 Irr • • - • • . f '3 i C.44,§16A Revisrm ORDINANCES OF NORTIIAMM•ON 1 C.44,li 16 (' • • Rubber, caoutchouc or gutta percha manufacture from crude or scrap materials. , Sewage disposal plant except when controlled by the • • municipality. Stock yard. ; Sulphurous, sulphuric, nitric or hydr liloric acid ; i l manufacture. } I I Tar distillation. i 1 Tar roofing manufacture. i i Slaughter house. I • Any area used for the storage of rags, scrap aper, scrap metal, or junk including automobile parts or buildi g materials i F salvage yards, shall be completely enclosed by a substantial an`d < < solid fence at least six (6) feet high, with openii gs only for • ingress and egress; said fence shall not be located nearer than six (6) feet to any public sirewaik. . INDUSTRIAL"A" i ' Section I5A. Definitions,exceptions,etc. i In an Industrial "A" district no building sha I be erected for or altered for, and no building or premises shal'I be used for • any purpose injurious, obnoxious or offensive to a eighborhood by reason of the emission of odor, fumes, dust, s lokei-vibra- • tion or noise or other cause or for any purpose ex .pt: (a) Any use permitted in an industrial district as set 0• forth in Section 15 provided that any such buildin shall be set back at least 35 feet from the street line. i . . NON-CONFOR\ZINC USE i i Section 16. Definitions,exceptions ect. (a) Any building or part of a building or pr raises which • at the time of adoption of this ordinance is being put to a non- conforming use, may continue to be used for the .acne purpose. 294 r---' . • 1 . _________________ ...... ______ . • („:„ • . • , . br . , . . . . ; r. < " C.44,§ 17 7A`In+o pu,INA:�ci. C. ',' IC (b) Any business in operation at the time of this ordi- i . nance is passed may expand on the same lot with the permis- sion of the Building Inspector. • (c) Any non-conforming use may be changed to another non-conformipg use or any non-conforming building may be re- built or. repaired on permit from the heard of Appeals. such ''I • new use or reconstructed building not to be s st ntiltlonal to the ferent in character or more detrimental or neighborhood. (d) Whenever a non-conforming use has been changed to , a more restricted or conforming use it shall not again be changed to a less restricted use. (c) When any non-conforming use has been discontinued for a period of two (2) years it Shall not be re-established, and future use shall be in conformity with this ordinance. However, in the matter of non-confol-ming.land used `ot' • agriculture, horticulture, or floriculture, such non-use mus have continued for at:least 5 Years. 7 AREA,YARD. AND IHEIGHT REGULATIONS Section 17—LOT SIZE.— „ . , U _�„ r • din ies 1••n Cc h .;o :•;. e. _ _rr7 :,iliill be erected :: - "� _ "C"or •try u ona lot one hundred _G G) , j` a wide except that lots le:;s than or hundred feeto• ti .,:e may be built on as provided In .✓acyip: 5l' of C. ,Ler 40A of the General Laws of ; ao: ac uset -s provided that all other yard reeuirement are uifilled. Section 18. Front 'Yards. 1 . In a Residence "A" district, no building shall be built le s than twenty (20) feet from the street line provided that. i;o . major building need be set back more tl,..a the average of t le setbacks of the buildings on the next lots on either side if bo h . these lots have major buildings built thereon. 295 . _ ill 4 14114 /4 gin /L/ 7 ? %Yap WM S.g ),OSSGAll -; s yfrve.e- /9 / 4* O/' /4'5 cb-40, oz/ - ,5z7-- 7791/-0, ' --- 26':)/' 0 c.454 CCYft-/Y4/ /5(1-- 6___570111eS /44,4c) fiS? 7-Fc 1/9,•116 4,7- cce, /99- su-, 76 derkAl - /Yi9�' riP� /1.//9/L446, / „,52 f 44.to 3-0 E . TABLE OF USE REGULATIONS DISTRICT RESIDENTIAL BUSINESS MEDICAL INDUSTRIAL CONS i PRINCIPAL USE RR SR UR-A UR-B UR-C CB GB HB NB M GI SI BP including a public garage NO NO NO NO NO A A A A NO A A NO NO Commercial radio and TV tower PB PB NO NO NO NO NO NO N0 NO PB PB PB PB Filling of any land (see §11.3) PB PB PB PB PB PB PB PB PB NO PB PB PB NO Filling of water or wet area (See § 11.2) PB PB PB PB PB PB PB PB ' PB NO PB PB PB PB Funeral establishment NO NO NO NO PB PB PB PB A NO NO NO NO NO Hotels/motels NO NO NO NO N0 PB PB NO NO NO NO NO NO NO Medical center including accessory medical research and associated facilities NO NO NO NO NO PB PB PB NO PB PB NO NO NO Night club/dance hall NO NO NO NO NO PB PB PB NO NO 10 NO NO NO Miniature golf course, temporary carnival NO NO NO NO NO NO NO PB NO NO NO NO PB Miscellaneous professional and business offices and services including, but not limited to, medical, legal, and other professional services and finance, banking, insurance and real estate offices NO NO NO NO N0 A A PB A NO NO NO NO NO Medical and dental offices NO NO NO NO NO NO NO NO NO PB iti5 NO NO NO (Editors note, see also above. For medical and dental offices without other offices, the more permissive applies.) Movie picture and live theater, indoor, not including night club/ dance hall or adult uses NO NO NO NO NO A PB A NO NO NO NO NO NO Nursing home (any facility licensed/sanctioned by the State as a nursing home or skilled nursing center, but not assisted living residences) PB PB PB PB PB NO NO NO NO NO NO NO PB NO Personal and consumer service establishment NO NO NO NO NO A A A A NO NO NO NO NO Pool or billiards hall, amusement arcade, bowling alley, teen center NO NO NO NO NO PB PB PB NO NO NO NO NO NO Repair service establishments NO NO NO NO NO A PB PB NO NO A PB NO N0 Restaurants and drinking places where consumption is primarily intended to be within the building NO NO NO NO NO A A A PB NO PB PB NO NO Drive-in restaurants and drinking establishment NO NO NO NO NO NO NO A NO NO NO NO NO Take-out restaurants and other establishments selling foods prepared on premises where consumption is primarily off the premises NO NO NO NO NO PB PB SITE NO NO NO N0 NO NO Tradesman N0 NO NO NO NO A A A PB NO A A NO N0 WHOLESALE, TRANSPORTATION AND INDUSTRIAL USES Airport, including aircraft sales NO NO NO NO NO NO NO NO NO NO NO NO NO PB Heliport NO NO NO NO NO PB PB PB NO NO PB PB NO PB Bus passenger terminal and taxi facilities NO NO NO NO NO A A A NO NO NO PB NO NO Commercial motor vehicle maintenance, garaging and parking facilities (outside parking shall be screened from the public view) NO NO NO N0 NO NO NO NO NO NO A PB NO NO Construction supply establishments NO NO NO NO NO NO NO A NO NO A A NO NO Contractor's yard, open storage of raw materials, finished goods, or construction equipment and structures for storing such equipment, provided outside storage areas shall be screened from outside view NO NO NO NO NO NO NO PB NO NO PB PB NO NO Manufacturing NO NO NO NO NO NO NO NO NO NO A PB NO NO Motor freight terminal and warehousing NO NO NO NO NO NO NO A NO NO A A NO NO Planned Business Park NO NO NO NO NO NO NO NO NO NO NO NO PB NO Processing and treating of raw materials including operations appurtenant to the taking, such as grading, drying, sorting, crushing, grinding and milling operations (See §11.2) PB PB NO NO NO NO NO NO NO NO PB NO PB PB Removal of sand, gravel, quarry, or other raw material (See Section 11.2) PB PB PB NO NO NO NO N0 NO NO PB PB PB PB Railroad passenger terminal NO NO NO NO NO A A A NO NO A PB NO PB Railroad yards and i railway express service NO NO NO NO NO NO PB PB NO NO A A NO NO Storage of a fluid other than water as a principal use NO NO NO NO NO PB PB PB PB NO PB PB NO r Acceptance, storage or disposal of radioactive waste, deregulated or otherwise, at any solid, liquid, "A" = Allowed by-right (Site Plan Approval is often also required for uses above certain thresholds); "PB" = Allowed by Special Permit from Planning Board; "ZBA" = Allowed by Special Permit from Zoning Board of Appeals; "CC" = Allowed by Special Permit from City Council; "SITE" = Allowed with Site Plan Approval from Planning Board "NO" = Not allowed April 23, 1996 5-4 /o. '2 4./(acd7ra . 44e .- 71.7`517--- e .r.eq` *f_..c a c>,...e-- .c.,/ ' ' G/• 2 • /g9S ARTICLE IV INTERPRETATION AND APPLICATION Section 4. 1 - Interpretation. The provisions of this Ordinance shall be interpreted to be the minimum requirements adopted for the promotion of the health, safety, morals, or the general welfare of the City of Northampton, Massachusetts , and except for Chapter 44, Zoning Ordinance, of the Revised Ordinances of the City of Northampton, Massachusetts , 1959 , and all subsequent amendments thereto, the provisions of this Ordinance are not intended to repeal , amend , abrogate, annul , or in any way impair or interfere with any lawfully adopted ordinance, covenants , regulations , or rules. Whenever the regulations made under the authority hereof differ from those prescribed by any statute, ordinance , or other regulations , that provision which imposes the greater restriction or the higher standard shall govern. Section 4. 2 - Application. Except as herein provided , the pro- visions of this Ordinance shall apply to the erection, con- struction, reconstruction, alteration, or use of buildings , structures , or use of land . Except as herein provided , any existing conforming use, structure , or lot shall not by any action become nonconforming and any existing nonconforming use, structure, or lot shall not become further nonconforming. Section 4. 3 - Existing Buildings and Land . This Ordinance shall not apply to existing buildings or structures , nor to the ex- isting use of any building or structure or of land , to the ex- tent to which it is legally used at the time of adoption of this Ordinance, but it shall apply to any change of use thereof and to any alteration of a building or structure when the same would amount to reconstruction , extension or structural change, and to any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent. Section 4 .4 - Mixed Uses . In cases of mixed occupancy, the regulation for each use shall apply to the portion of the building or land so used . 4-1 Table of Use Regulations District Residential Business Indus- Conser- trial "an'-y Principal Use R-R SR UR-A UR-B UR-C CB GB HB NB 1 SI SC • RESIDENTIAL 1 . One-family dwellings A A A A A - - - SP - - 2 . Two- family dwellings - - - SP A - - - Sp - - 3 . Three-family dwellings - - - SP A - - - A - - "' 4. Multifamily dwellings 1 ^' not to exceed three stories - - - - A - - - A - - 5 . Multifamily dwellings exceeding three stories - - - - SP - - - SP - - 6 . Town houses - - - SP A - - - A - - 7 . Lodging houses - - - SP A - - A - - 8. Halfway houses - - SP SP SP - - - SP - - 9 . Fraternities and sororities - - - SP SP - - - - - "A" •.:s's allowed by "SE" uses allowed only by "SP" uses allowed only ri: t by special exception by special permit frotn City Council from Board of Appeals Table of Use Regulations (Continued) District Residential Business Indus- Conser- trial vanry Principal Use R-R SR UR-A UR-B UR-C CB GB HB NB G SI SC ' 11. Nursing Home - - - SP SP - - - - - - 12 . Membership club operated for profit - - - - - A A' SP - SP - 13 . Miscellaneous professional and business offices and services including, but not limited to, medical, legal , and other professional ser - vices and finance, banking, insurance and real estate i 0 offices - - - - SP A A SP A A - 14. Automotive repair or auto- - mobile service station (not including a junkyard or open storage of abandoned auto- _-_ moles or other vehicles) subject to obtaining gas - storage permit from City Council where necessary - - - - - - SP SP SP SP - - 15. Business service and sup- ply service establishments - - - - A SP SP - A SP - 16. Repair service establish- _ . -. ments - - - - - A SP SP - - SP - "A" uses allowed by "SE" uses allowed only by "SP" uses allowed only "-" uses not right special exception by special permit permitted from City Council from Board of Appeals