23A-079 (10) ti,. D r-C7‘,1 rJ
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William H. Welch • 1
LAW OFFICES, INC. MAR 2 1977
143 MAIN STREET
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NORTHAMPTON, MASSACHUSETTS
01060 INSPECTION DENA Coos 413
WILLTAm W, Gomm, Jx NORTHAMPTON, MAE& 584-0368
ASSOCIATE
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February 28, 1977
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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
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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
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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
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Page 4
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• 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 .
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