23D-186 (8) File#MP-2004-0087
APPLICANT/CONTACT PERSON MORSE&SACKS O4/iyG�
ADDRESS/PHONE 31 Trumbull Rd (413) 584-1287
PROPERTY LOCATION 31 WINSLOW AVE
MAP 23D PARCEL 186 001 ZONE URB
THIS SECTION FOR OFFICIAL USE ONLY:
PERMIT APPLICATION CHECKLIST
ENCLOSED REQUIRED DATE
ONING FORM LLED OUT
_d�//7, Z Or—
Building Permit Filled out
Fee Paid
Typeof Construction: ZPA-RESOLUTION OF BOUNDARY DISPUTE
New Construction
Non Structural interior renovations
Addition to Existing
Accessory Structure
Building Plans Included:
Owner/Statement or License
3 sets of Plans/Plot Plan
THE FOLLOWING ACTION HAS BEEN TAKEN ON THIS APPLICATION BASED ON
INFWMATION PRESENTED: a
roved Additional permits required(see below) S7//9 r456 _ iQ`' r
PLANNING BOARD PERMIT REQUIRED UNDER: § eli o/OcQ is
co. 'S/-5 rr""/ w
Intermediate Project: Site Plan AND/OR Special Permit with Site Plan
Major Project: Site Plan AND/OR Special Permit with Site Plan C 02 A SS rSS0ES
ZONING BOARD PERMIT REQUIRED UNDER: § 1'k(47n PO41
cam' 77I/S Lo%
Finding Special Permit Variance*
Received&Recorded at Registry of Deeds Proof Enclosed
Other Permits Required:
Curb Cut from DPW Water Availability Sewer Availability
Septic Approval Board of Health Well Water Potability Board of Health
Permit from Conservation Commission Permit from CB Architecture Committee
Permit from Elm Street C 'ssion
f' � 2.- Zoo y
Signature of Building Official Date
Note:Issuance of a Zoning permit does not relieve a applicant's burden to comply with all zoning
requirements and obtain all required permits from Board of Health,Conservation Commission,Department
of public works and other applicable permit granting authorities.
*Variances are granted only to those applicants who meet the strict standards of MGL 40A.Contact the Office of
Planning&Development for more information.
1, lL f; j `L/
J L JA N 2 9 2004 n'a
File No.
ERMIT APPLICATION ((10.2)
Please type or print 11 information and return this form to the Building
Inspector's Office with the $15. filing fee (check or money order)payable to the
City of Northampton
1. Name of Applicant: Mark A. Tanner, Esq., MORSE & SACKS
31 Trumbull Road, Northampton, MA 010l (413) 584-1287
Address: Telephone:
2. Owner of Property: Jason M. Todd and Jessica M. Dunson-Todd
31 Winslow Avenue North MA 01060
Northampton, (413) 374-7044
Address: Telephone:
Telephone:
3. Status of Applicant: Owner Contract Purchaser Lessee XX Other (explain) poro0 veneer
4. Job Location: 31 Winslow Avenue, Northampton, MA
Parcel Id: Zoning Map# `� Parcel# District(s):LU217---
In Elm Street District In Central Business District
(TO BE FILLED IN BY THE BUILDING DEPARTMENT)
5. Existing Use of Structure/Property: single-family residence
6. Description of Proposed Use/Work/Project/Occupation: (Use additional sheets if necessary):
NONE: RESOLUTION OF BOUNDARY IN DISPUTE
7. Attached Plans: Sketch Plan Plot Plan Site Plan Engineered/Surveyed Plans
8. Has a Special Permit/Variance/Finding ever been issued for/on the site?
NO DON'T KNOW XX YES IF YES, date issued:
IF YES: Was the permit recorded at the Registry of Deeds?
NO DON'T KNOW XX YES
IF YES: enter Book Page and/or Document#
9. Does the site contain a brook, body of water or wetlands? NO XX DON'T KNOW YES
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)
10. Do any signs exist on the property? YES NO xx
IF YES, describe size, type and location:
N/A
Are there any proposed changes to or additions of signs intended for the property? YES NO xx
IF YES, describe size, type and location: n/a
11. ALL INFORMATION MUST BE COMPLETED, or PERMIT CAN BE DENIED DUE TO LACK OF INFORMATION
This column reserved
for use by the Building
Department
EXISTING PROPOSED REQUIRED BY
ZONING
Lot Size 16,120 sq. ft. same
Frontage
77.5 same
Setbacks Front 15 ft. will not change
Side L: t 20 f t R: 12 ft L: will R: will L: R:
not change not
Rear f 165 ft change
will not change
Building Height 1 story will not change
Building Square Footage 1056 will not change
Open Space: (tot area unknown will not change
minus building&paved parking Unl OWn
# of Parking Spaces
n/a will not change
# of Loading Docks
n/a n/a
Fill: none n/a
(volume a location)
12. Certification: I hereby certify that the information contained herein is true and accurate to the best of
my knowledge.
Date: / 2 i- c"/ Applicant's Signature 6�
NOTE: Issuance of a zoning permit does not relieve an a plicant's burden to comply with all zoning
requirements and obtain all required permits fro the Board of Health, Conservation Commission,
Historic and Architectural Boards. Department of Public Works and other applicable permit
granting authorities.
000.pdi
--NOTE-
THIS PLAT IS COMPILED FROM DEEDS, PLANS AND OTHER SOURCES AND IS NOT
TO BE CONSTRUED AS AN ACCURATE SURVEY AND IS NOT TO BE RECORDED.
BUILDING LOCATION ACCURACY IS NOT GUARANTEED
31
•
'TO: BANKNORTH, N.A. &
FIRST AMERICAN TITLE INSURANCE COMPANY
TO THE BEST OF MY INFORMATION, KNOWLEDGE AND BELIEF
I HEREBY REPORT THAT I HAVE EXAMINED THE PREMISES AND BASED ON EXISTING
MONUMENTATION ALL VISIBLE EASEMENTS, ENCROACHMENTS AND BUILDINGS ARE LOCATED ON
THE GROUND' AS SHOWN AND THAT THE BUILDINGS ARE ENTIRELY WITHIN THE LOT LINES,
EXCEPT AS NOTED. I FURTHER REPORT THAT THE PROPERTY IS NOT LOCATED WITHIN
A FLOOD PRONE,AREA AS SHOWN ON FEDERAL FLOOD INSURANCE MAPS FOR
COMMUNITY # 250167
—NOTE—
SURVEYOR THIS PLAT FOR MORTGAGE LOAN PURPOSES ONLY
AND DOES NOT CONSTITUTE A PROPERTY SURVEY
oN or eq -MORTGAGEINSPECTION
PLAT—
NORTHAMPTON, MASSACHUSETTS
RAN ALL PREPARED FOR
IZEER - JASON RosF L1-1NGS'.CON & REBILaA RCSE-T 7..UN
#33032 SCALE: 1"=30' JANUARY 7, 2004
144su
.. HAROLD L. EATON AND ASSOCIATES, INC.
REGISTERED PROFESSIONAL LAND SURVEYORS
235 RUSSELL STREET — HADLEY — MASSACHUSLIIS
MORSE & SACKS
ATTORNEYS AT L A W
31 Trumbull Road
JAN 2 9 2004 Northampton, MA 01060
- -
January 29, 2004
Mr. Anthony Patillo, Building Commissioner
City of Northampton
212 Main Street
Northampton, MA 01060
RE: 31 Winslow Avenue
Northampton, MA
Dear Mr. Patillo:
Enclosed please find an Application for a Zoning Permit.
As previously discussed with Mrs. Mische of the Planning Department, this application creates
no boundaries, modifications or changes to the property as it now exists. Rather, the zoning permit is
requested following the compromise of a boundary dispute, whereby the Applicant recognized the
boundary line claimed by the abutter.
If you have any questions whatsoever as to the enclosed Application, please give me a call.
Thank you for your anticipated courtesies in this matter.
Very truly yours,
MORSE & SACKS
By
Mark X. Tanner JD, MBA
MAT/sd
Encl.
Todd\dispute\patillo let 1 29 04.doc
Telephone (413) 584-1287 In Connecticut (860) 745-0045 Facsimile (413) 584-0453 E-mail: law@morseandsacks.com
HARLEY M. SACKS* ALVERTUS J. MORSE (1872-1949)
ALVERTUS D. MORSE (1904-1982)
JOHN M. MCLAUGHLIN' *ALSO ADMITTED IN NEW YORK
MARK A. TANNER" +ALSO ADMITTED IN CONNECTICUT
•1
642 ,
/� 36 Mass. App. Ct. 642 36 Mass. App. Ct. 642 643
DiStefano v.Stoughton.
DiStefano v. Stoughton.
amendments conferred by G. L. c. 40A, § 7A, as amended
through St. 1965, c. 366.4 A judge of the Land Court found
. that, although the checrboard conveyances
to
ALBERT N. DISTEFANO, individually and as trustee & place ownership so that no two adjacent lots wereorted h held in
others' VS. TOWN OF STOUGHTON & others.s common, the nominal owners were all under the control of
tvo. 9s-P-63z. Albert N. DiStefano. Accordingly, the judge responded to
the owners' complaint for a declaratory judgment (G. L.
Suffolk.April 15, 1994.-June 10, 1994. c. 231 A) with a declaration that the locus was subject to
€.•; zoning by-law amendments that the inhabitants of Stoughton
Present:Petexerre,K.&ss, & PORADA,JJ.
Zoning, Lot, Amendment of by-law or ordinance, Lot size, Exemption. had adopted in 1970. We affirm.
p At the time of the approval of the definitive subdivision
Subdivision Control, Zoning requirements.
plan for the locus, September 15, 1967, the lot area and
A judge of the Land Court correctly determined that the "checkerboard" frontage requirements for the zoning district (Residence B)
conveyances of twenty-one of forty lots purporting to place ownership in which the locus was situated were 15,000 square feet and
so that no two adjacent lots were held in common (an effort to perpetu- 100 feet. By amendments adopted in 1970, the minimum lot
ate the nonconformity of the lots in anticipation of the expiration of the size was increased to 40,000 square feet and the minimum
period of immunity from more restrictive zoning amendments) were in-
effective, as all the nominal owners were under the control of a single frontage to 150 feet. As laid out in the 1967 subdivision plan,
person, and the judge correctly entered a declaratory judgment that the '' the forty lots of the locus conformed to the dimensional re-
locus was subject to the more restrictive zoning by-law amendments. quirements applicable in 1967. No lots have been sold from
[645-6461 '.'
the subdivision, and, indeed, none of the site improvements
laid down by the planning board in recorded covenants5 as a
" precondition for the sale of lots has been constructed to date.
CIVIL ACTION commenced in the Land Court Department
on June 6, 1988. Section 7A of c. 40A provided that the "[zoning] by-law in
The case was heard by Robert V. Cauchon, J. effect at the time of the submission of the first submitted
David C. Johnson for the plaintiffs. t. [subdivision] plan shall govern the land shown on such ap-
proved [subdivision] plan, for a period of,seven years from
the date of endorsement of such approval notwithstanding
KAss, J. In an effort to perpetuate the nonconformity of any other provision of law." That statutory seven-year zoning
forty lots laid out in a subdivison in 1967, the owner of those
• "freeze," as it is sometimes called,6 ended, so far as the 1967
lots, A & A Contracting, Inc., engaged in "checkerboard" .
conveyancess on August 29, 1974, in anticipation of the expi- subdivision plan was concerned, on September 14, 1974.
ration of the period of immunity from more restrictive zoning an adjacent lot. See Wright v. Board of Appeals of Falmouth, 24 Mass.
App. Ct. 409, 411 n.5 (1987).
'Albert N. DiStefano is named individually and as trustee of A.N.D. 'The reference is to the "old" zoning enabling act added by St. 1954,
Realty Trust. The remaining plaintiffs are Anna M. DiStefano and c•appears68, § 2. The substance of what had appeared in § 7A of
zoning enabling
A & A Contracting, Inc.
, and the buildinginspectoract inserted in the General Laws by St. 1975, c. 808, § 3.
'The board of appeals, the planning board, of °See G. L. c. 41, § 81U.
'Through a series of conveyances a parcel can be divided in a checker- :ft. °See Long v. Board of Appeals of Falmouth, 32 Mass. App. Ct. 232,
board pattern such that no person named as an owner of a lot holds title to 235 (1992).The duration of the freeze has had a history of ups and downs,
though mostly ups. It began as a three-year f ceze. St. 1957, c. 297. In
'' 644 36 Mass. App. Ct. 642 36 Mass. App. Ct. 642 645
� DiStefano v.Stoughton. DiStefano V.Stoughton.
f
Faced with what it regarded as the grim prospect of hav- 689, 691 (1989), S.C., 406 Mass. 1008 (1990), the latter of
ing only fifteen rather than forty lots to develop, the owner which observed that "[t]he crux, thus, was not the form of
sought to avail itself of grandfather provisions in § 5A of ownership, but control: did the landowner have it `within his
"old" c. 40A. That section, broadly stated (i.e., without re- power', i.e., within his legal control, to use the adjoining land
' gard to certain limiting factors as to minimum size that were so as to avoid or reduce the nonconformity . . . ." It is a
contained in the statute), gave perpetual life as a lawful lot familiar principle that a landowner may not claim rights
for zoning purposes to a parcel that, during the period it from the nonconformity of a lot if that same person owns
could lawfully be built upon, was "held in ownership sepa- adjoining land that would avoid the nonconformity. 27 Mass.
rate from that of adjoining land located in the same residen- A Ct. at 690, and cases there cited.
tial district." G. L. c. 40A, § 5A, as amended through It remains only to consider whether the record warranted
St. 1961, c. 435, § 1. To that end, A & A Contracting, the judge's finding that Albert DiStefano retained the master
Inc., the record owner of all the lots in the subdivision, on hand as to all the lots in the locus. He was the sole director
I' i August 29, 1974, sixteen days before the freeze expired, con- and officer of A & A Contracting, Inc., according to an an-
veyed twelve lots to Albert N. DiStefano, as trustee of nual report filed with the Secretary of the Commonwealth,
A.N.D. Realty Trust, five lots to Albert individually, and although he testified that he was not "positive" whether his
four lots to Anna M. DiStefano, who is Albert's wife. The wife Anna might have held an office as well. Of A.N.D. Re-
remaining nineteen lots remained with A & A Contracting, alty Trust, Albert was the sole trustee and had plenary pow-
Inc.
ers to make conveyancing decisions. Anna, merely by reason
11 Without using the censorious word "sham," compare Lee of her being Albert's wife, is not automatically a controlled
v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148, 151 person so far as the lots to which she received title are con-
In.4 (1981), to describe the checkerboard conveyances, the cerned. The judge could find, however, that her lots were, in
judge found that Albert continued to exercise control over all fact, under Albert's control because the group of lots trans-
i the lots in the locus after the conveyances and ruled that fered to her were "sold" for a consideration of $100, i.e.,
those conveyances secured no grandfather rights under § 5A nominal; there was no evidence that the $100 was ever paid;
for the locus.' In so doing, the judge followed Sorenti v. Anna acceded to Albert's control in the corporation; and Al-
Board of Appeals of Wellesley, 345 Mass. 348, 353 (1963), bert filed a revised subdivision plan for the locus in 1983 for
and Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. all the lots in the locus, with no participation by Anna. We
may disregard the shell of purportedly discrete legal persons
1961, the freeze increased to five years. St. 1961, c. 435, § 2. As we have engaged in business when there is active and pervasive con-
seen, the 1965 legislation set the freeze at seven years. With the passage of trol of those legal persons by the same controlling person and
St. 1975,c. 808, § 2, the period descended once again to five years, but in there is a confusing intermingling of activity among the pur-
1982 it went up to eight years. St. 1982, c. 185.
'The town has argued that the plaintiffs never satisfied the criterion of portedly separate legal persons while engaging in a common
G. L. c. 40A, § 5A, as amended through St. 1961, c. 435, § 1, that z' enterprise. My Bread Baking Co. v. Cumberland Farms,
"building on such a lot was otherwise permitted" at the time of the at- Inc., 353 Mass. 614, 620-621 (1968). Evans v. Multicon
tempted protective conveyance. Such was the case, the town says, because Constr. Corp., 30 Mass. App. Ct. 728, 732-733 (1991). The
the owner of the locus at the time had yet to perform any of the covenants judge rightly disregarded the checkerboard conveyances, a
imposed at the time of subdivision approval and there had been no applica-
tion for building permits. We think, in context, the words `otherwise per -
mitted" apply to zoning provisions and not other land use controls that tion. See Lee v. Board of Appeals of Harwich, 11 Mass.
might bear on the land.
$t