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241 Haydenville Rd Meeting Request 2013-01-14!:: LYON & FITZPATRICK,LLP ~TTORNEYS AND COUNSELORS AT LAW ~"~--~___.."w__~~ JAMES F. DONNELLY PETER C. CONNOR PRISCILLA FIFIELD CHESKY ROBERT C. SACCO KATHARINE mGGINS-SHEA TRICIA L KOSS* • Also admitted in Connecticut Louis Hasbrouck Building Commissioner City ofNorthampton Puchalski Municipal Building 212 Main Street Northampton, MA 01060 RL~CL,",,, ,.,.,'[~I'~l DEPT. OF BUilDING INSPECTIONS NORTHAMPTON MA01060 January 11,2013 OF COUNSEL WILLIAM D. FITZPATRICK ARCHER B. BATTISTA CLARKE S. LYON (1920 -2002) Re: 241 Haydenville Road, Leeds, Massachusetts Our File No.: 20,513 Dear Mr. Hasbrouck: Please be advised that this office has been retained by the Girl Scouts of Central and Western Massachusetts, Inc. in connection with the proposed sale of the above-identified property. My client has listed the property for sale and has identified a buyer for the property, Robert Abbatiello. Mr. Abbatiello intends to use the building located thereon in connection with his acupuncture practice. He further intends to sublet the space to various other health and well­ being professionals, including a massage therapist. Not only will the proposed use be a welcome addition to the atmosphere of the City, it would also permit the City to place the property back on the tax roll and·generate additional income. It is my understanding that Mr. Abbatiello has already filed a Zoning Permit Application with the Department of Building Inspections on or about December 12, 2012. I have since reviewed your decision dated December 19, 2012, in which you denied Mr. Abbatiello's application indicating that additional permits, specifically a variance would be necessary. In light of your denial of Mr. Abbatiello's permit request, we would like to schedule a meeting with you in order to discuss the matter. If not to understand the reasons for your denial of the proposed use, then for the purpose of determining what type of use may be permitted for this property under the variance previously granted and thus how our client should market the property going forward. Ifyou would like to have counsel present, we would welcome his or her attendance as well. Whitney Place 14 Bobala Road Holyoke, Massachusetts 01040 413.536.4000 fax: 413.536.3773 www.lyontitzpatrick.com !: LYON & FITZPATRICK, LLP ~TTORNEYS AND COUNSELORS AT LAW Mr. Louis Hasbrouck, Bldg. Commissioner City ofNorthampton January 11,2013 Page 2. As you are aware, on December 1, 1965, following a public hearing, the Western Massachusetts Girl Scout Council, Inc. was granted a variance which allowed it to operate in a residential zoned area of Northampton. The language of the decision permitted the Girl Scouts to erect "a Colonial type office building of wood or brick [ ... ]". Based on our interpretations of the variance as well as the relevant case law regarding variances, the variance which was previously granted to the Girl Scouts authorizes the proposed use by Mr. Abbatiello as an office building. At the time the Variance was issued, Chapter 40A, s. 15 as enacted under Chapter 368 and 551 of the Acts of 1954, stated that the board "may impose limitations both of time and of user, and a continuation of the use permitted may be conditioned upon compliance with regulations to be made and amended from time to time thereafter." On its face, the variance permits an office use. To suggest that this use is limited particularly to the Girl Scouts, and would need to be expanded so as to allow Mr. Abbatiello's proposed use, is inaccurate. The Notice of Variance, filed in relation to this property, was filed with the Hampshire County Registry of Deeds at book 1477, Page 182 and indicates that a "Conditional or Limited Variance or Special Permit" has been granted to the Western Massachusetts Girl Scout Council, Inc., and refers any person seeking additional information to the Decision on file with the City of Northampton Clerk's office. The Decision of the Board of Appeals makes no reference to a "conditional" or "limited" variance, but rather simply grants a variance from the provisions of Section 11, Chapter 44 of the City ofNorthampton Ordinances. The variance reads as follows: "At a public hearing held on November 22, 1965 at 7:00 PM at the City Hall on the petition of Western Massachusetts Girl Scouts Council, Inc., for a variance from the provisions of Section 11, Chapter 44 of the City of Northampton to erect a Colonial type office building of wood or brick to be used for the administrative work ofthe petitioner, the Board voted unanimously to grant the variance." At various points throughout this process, our client has been told that the language of the varianc.e limits the use of the property to the Girl Scouts, or that its application is limited to that of an educational institution, or most recently that because the use contemplated in the variance is currently permitted under the current zoning regulations, the variance has lapsed. These objections do nothing more than signify a moving target for our client when marketing the property for sale. Although the language on its face may be viewed as a condition or limitation upon the variance so as to limit it specifically to the Girl Scouts, the law prohibits any type of condition relating to ownership. In Huntington v. Zoning Board ofAppeals ofHadley, 12 Mass. App. Ct. Whitney Place 14 Bobala Road Holyoke, Massachusetts 01040 413.536.4000 fax: 413.536.3773 www.lyonfitzpatrick.com !:: LYON & FITZPATRICK, LLP r:TTORNEYS AND COUNSELORS AT LAW Mr. Louis Hasbrouck, Bldg. Commissioner City of Northampton January 11,2013 Page 3. 710 (1981), a condition that a variance was valid only for the landowner's lifetime was removed by the Board of Appeals upon petition of the landowner and the Appeals Court upheld this removal. In doing so, the court noted that such a condition bears no relation to any circumstance that affects the underlying real estate; it was not aimed at the nature, character, or extent of the use permitted of the estate, and it served only to limit the duration of the variance itself by tying it to the lifetime of a partiCUlar individual. The Huntington case continues to be cited for the proposition that a "variance applies to the land rather than to its current owner, and ... runs with the land when it is conveyed to [another] person", and was most recently cited for this position in Lydon v. Town ofMilton Board ofAppeals 2012 WL 1572128 (Mass. Land Ct. May 3, 2012). In addition to the relevant case law, the Legislature through the adoption ofthe section 10 of chapter 40A, as appearing in St. 1975, c. 808, s.3 took the position that such restrictions upon the ownership were prohibited. When the Legislature adopted section 10, it inserted new language within the statute which prohibits the imposition of "any condition, safeguards or limitation based upon the continued ownership of the land or structures to which the variance pertains by the applicant, petitioner or any owner." It should be noted that even if arguendo that this type of condition were permitted, the law requires conditions to be laid out explicitly in the variance itself. It has said, "it is vital that any conditions must be clearly laid out in the four comers of the variance decision." Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 205 (2005). ("Purchasers of property or their attorneys are not expected or required to look behind the face of the recorded variance decisions to ascertain their effective scope [ ... J." That is to say in order for conditions on a variance to be binding, . they must. be set forth in the variance decision itself. See Lussier v. Zoning Bd. of Appeals, 447 Mass. 531, 535 (2006). To later enforce vague conditions not apparent on the face of a variance would present problems for future owners of the property. Id. at 534 ("[ c ]onditions on a variance must be sufficiently definite to apprise both the applicant and interested landowners of what can and cannot be done with the land."). . . . Nothing on the face of the variance itself would indicate that "of the petitioner" was intended to operate as a condition. Nor is there anything to suggest that it is limited to a non­ profit use. There is no reference to "Conditions" on the variance itself. As property owners are not required to look beyond the decision itself, the intent or the Board when allowing such decision, or any discussions thereof including in any meeting minutes, are irrelevant. The variance which was granted is not ambiguous and does not incorporate any other documents. Thus, we need not look beyond the fact of the variance to determine its terms. See Mendoza, 444 Mass. at 205-206. Your denial of Mr. Abbatiello's application is based upon imposed conditions -non-profit vs. profit or educational type uses -that is not stated in the variance. At the time the variance was granted the Board of Appeals understood how to impose Whitney Place 14 Bobala Road Holyoke, Massachusetts 01040 413.536.4000 fax: 413.536.3773 www.lyonfitzpatrick.com !: LYON & FITZPATRICK, LLP r-:TTORNEYS AND COUNSELORS AT LAW Mr. Louis Hasbrouck, Bldg. Commissioner City of Northampton January 11,2013 Page 4. conditions. The present attempt to tie the variance solely to the Girl Scouts, specifically, or by the type of work in which they engage, is at odds with the contents of the variance decision itself. It is for these reason, we would like to schedule a meeting to discuss your decision. By way of courtesy we are send a copy to the City's counsel, Attorney Alan Seewald. I look forward to hearing from you, and hope that we will be able to come to an amicable resolution to this matter which is beneficial to all parties involved. Itlk Enclosures Cc: Alan Seewald, Esq. Suzanne Smiley U:\WP80\G\Girl Scouts ofofC&W Mass\Ltr. to L. Hasbrouck (Building Commissioner) 01-10-2013.doc Whitney Place 14 Bobala Road Holyoke, Massachusetts 01040 413.536.4000 fax: 413.536.3773 www.lyonfitzpatrick.com