241 Haydenville Rd Meeting Request 2013-01-14!:: LYON & FITZPATRICK,LLP
~TTORNEYS AND COUNSELORS AT LAW
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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
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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