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23A-079 (10) ti,. D r-C7‘,1 rJ ` • William H. Welch • 1 LAW OFFICES, INC. MAR 2 1977 143 MAIN STREET • NORTHAMPTON, MASSACHUSETTS 01060 INSPECTION DENA Coos 413 WILLTAm W, Gomm, Jx NORTHAMPTON, MAE& 584-0368 ASSOCIATE • February 28, 1977 • Mayor David Cramer and dMr. Cecil Clark, Bldg. Insp. City Hall City Hall Northampton, Mass . 01060 Northampton, Mass. 01060 Gentlemen: - I have been asked to give an opinion concerning the problem which has arisen relative to the new building con- structed by Dr. George Falk. The facts concerning this problem as I understand them, are the following: Dr. George Falk has owned the property at 41 Main Street in Florence, City of Northampton, since December, 1972 when he acquired title to it. At the time of the adoption of the new zoning law in Northampton, this property had on it a two story house used as an apartment on the second floor and a residential and dental office on the first floor. On or about September 1, 1976, Dr. Falk applied for and received a building permit to construct a new building on the same property with the old two story house to be demolished. The property is located in a general business (GB) zone. When Dr. Falk applied for the permit he indicated that the use of the building was going to be for business or professional offices . This type of use is a permitted use in a GB zone provided all dimensional,parking, building, density and other requirements are met. By error, the Building Inspector believed that the density and dimensional requirements which applied to a Residential-Business use was the applicable regulation and issued a building permit, as this regulation did not require any minimum setback, lot width, lot depth and the minimum lot February 28, 1977 Page 2 • area of 6,000 sq. ft. plus 1,000 for each unit (of housing) was met. As I understand, the lot has, in fact, approximately 7,330 sq. ft. as described in his deed. The situation at the present time, therefore, is that the building has been constructed, but is not being used and was constructed under a permit which was issued in good faith, but by mistake. As I understand, the: following are the questions which you wish answered: 1. Is the City liable for damages because the mistake was made in issuing the permit? The answer is "NO". 2 . Does the City have a duty to take action to correct the situation? The answer is "YES" . 3. Can the City revoke the building permit issued to Dr. George Falk in September, 1976? The answer is "YES" . 4. Can Dr. Falk now file new plans and request a building permit for a building to be used for mixed residential- business and can the building inspector issue a new building permit provided the requirements of the zoning ordinances for the mixed residential/business use relative to density, dimensions , parking, etc. , are met? My answer is "YES" . Question No. 1 -- in the recent case of Morash & Sons v. Commonwealth, 363 Mans . 612, Judge Quirico of the Mass . Supreme Court discussed at some length the question of whether a municipality is liable for damages or whether a municipal official is liable for damages because of a good faith mistake, not resulting from malice. The conclusion was that public ti February 28, 1977 • Page 3 officials are not responsible for mere negligence or errors and the old rule which. has prevailed for some time was not changed, namely, that a City or Town is not liable in tort for damages, unless the damages result from some enterprise being conducted by the City, hopefully for profit, where charges or fees are assessed to people using the service, such as water departments . Question No. 2 -- The City does have a duty to enforce the zoning laws and to take action to correct the situation. There are several cases in Massachusetts which sustain this principle, among them, Wood v. Building Inspector of Boston, 256 Mass. 238 and Goldman v. Planning Board of Burlington, 347 Mass. 320. In general, it has been held that an illegally issued permit does not vest any right or privilege in the person who receives it . See 6 ALR 960. Therefore, the City or Town can revoke the permit if it was improperly granted. However, the mere fact that a permit was improperly granted and that someone was using property contrary to the zoning laws does not automatically in and of itself mean that the use will be prohibited or stopped. Enforcement of zoning laws has been usually accomplished through petitions for a writ of mandamus filed in the court. The issuance of this writ is discretionary with the judge. If he issues the writ, he would then compel the building inspector to enforce the zoning law and to cease the violation. However, since it is discretionary, the court can take into consideration all of the facts in determining whether it would be equitable and fair to order a person to cease using a particular building or property. In the case of Marblehead v. Deery, 356 Mass. 532 , the Town sought to compel the defendant to remove a portion of his dwelling. He had received approval to construct it and the evidence was that it would have cost $8, 000 to $10, 000 to remove the portion that was in dispute. The Supreme Court affirmed the action of the trial judge who refused to require the defendant to remove the portion of his building and said in part: "Although the town is not now estopped to assert the zoning violation by reason of the 1960 conduct of its selectmen and officers, there is , February 28, 1977 • Page 4 • • as suggested earlier, no showing of any % public advantage which could result from a rigid and inequitable enforcement of the by-law. Substantial hardship and expense would be imposed upon Deery who has greatly • changed his position since 1960 in reliance upon the decision of the Board ofSurvey * * * - There is here involved no property interest - requiring application of a rule like the strict rule concerning specific relief against • trespass. " In the case of Selectmen of Lancaster v. DeFelice, 352 Mass. 205, the defendant erected a structure without a permit because the former building inspector, when consulted, did not consider the permit necessary. It turned out , in fact, one was required and that it was in violation of zoning laws pertaining to sideyard requirements and backyard requirements . However, it appeared that the building which the defendants had, did meet the requirements of the zoning law which was in effect at the time the suit went to court. The Supreme Court said in part:-- "There is no suggestion that a permit would not have been granted if the building inspector • had believed one to be necessary. The structure is allowed by the zoning by-law. * * * There is, however., no reason for requiring the structure to be demolished, unless, upon reasonably prompt application a permit is properly denied for reasons other than the erroneous interpretation of the zoning by-law. " Therefore, in my opinion, if the plans which Dr. Falk • has at the present time do conform to the zoning by-laws , then I believe the Building Inspector can issue a building permit for the proper use, in accordance with the zoning by-laws and the other permit should be revoked. To hold otherwise would, in my opinion, exalt form above substance. Another question has also been raised as to whether • the residential unit in the mixed residential/business use can be used in part for an office. In my opinion, it cannot. Under February 28, 1977 Page 5 the definition of a home occupation, it is permissible to use a portion of a dwelling, up to 40% of the floor area, for any occupation customarily associated with a home, but in my opinion, this would not cover a dentist's office as the. following definitions of a home service occupation specifically excludes offices of doctors, architects, engineers, lawyers, etc. - Under the definition of "Use-Mixed" the Northampton Zoning Ordinance indicates that where two or more uses occupy the same structure, each must be independent of and unrelated to the other. Therefore, in my opinion, the dwelling unit must be used for residential purposes alone and the business portion of the building may be used for business purposes. The question has also arisen relative to the buffer zone or buffer strip set forth in Section 6. 5. If Dr. Falk erects a solid wall or fence not to exceed six feet in height, • complimented suitable en this, in my opinion, footbufferstripreferred may be sub to in that Section. Very truly yours, • hf . OW tiYfiW/fw . I