32C-179 (34) ATTY'S SHEPPARD&REALL Fax:413-5862937 Rpr 28 '99 9:54 r. Ir
Dated April 28 , 1999
By: Janet M. Sheppard, Esq.
City Solicitor for the
City of Northampton
76 Masonic Street
Northampton, MA 01060
(413) 585-5889
BBO # : 457820
CERTIFICATE OF SERVICE
I , Janet M . Sheppard, Esq. , certify that on this 28th
day of April , 1999, I served the foregoing by mailing
a copy of same, first class mail , postage pre-paid, to
Albert Bessette, Jr . , Esq. , 134 School Street , Granby,
MA 01040 .
Janet M. Sheppard
c:texttcity9ftherry.ans
HIIY'S SHLVrHKV6KLHLL t'aX-.41J-D60Z'J3( rip to rn
Seventh Defense
The Plaintiff is not aggrieved by the decision of the
Zoning Board of Appeals .
Eiahth Defense
Plaintiff is not a party in interest and has no
standing in this matter.
Ninth pefense
The Complaint was not filed and served within the time
and in the manner provided by Law.
Tenth Defense
The statutory cause of action does not provide for a
trial by jury .
WHEREFORE, Defendants pray that this Court
1 . Dismiss the Plaintiff ' s Complaint ;
2 . 0rder that the Plaintiff pay to the Defendants
costs, expenses and attorneys fees pursuant to
M .G .L. ch. 231 §6F;
3 . 0rder such other further relief as this Court deems
just and proper .
Respectfully submitted,
Nnn1\1 T .AMON ZONING BOARD OF
\/ Hil� L PT
APPEALS, MARK NEJAME, LARRY
SNYDER, and BOB RIDDLE
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ATTY'S SHLPPHKD&KEHLL Fax:415-t)6b1y6r Hpr zzi yy y•33 r. 17
The Plaintiff is not entitled to recover as the
complaint does not set forth a claim upon which relief
can be granted.
S e c on De f n We
-
TM further answering, the Defendants say that the
Plaintiff ' s claim is frivolous and not made in good
faith, and the Defendants , therefore, demand their
costs and attorneys' fees pursuant to G.L . ch. 231
§6F.
Third Defense
The Defendant , Zoning Board of Appeals of the City of
Northampton, at all times acted within the scope of
its authority in reaching its decision and issuing its
finding and its actions should be upheld .
Fourth Defe
The Defendants say that the Plaintiff ' s complaint must
be dismissed on the grounds that the service of
process against them was insufficient .
f h Defense
Plaintiff has waived or should be estopped from
asserting some or all of the claims set forth in the
complaint .
Sixth Defense
The Defendant . Zoning Board of Appeals of the City of
Northampton, complied with all of the Laws of the
Commonwealth and Ordinances of the City of
Northampton .
4 -
H1TY'S SHEF'F'HKUKKLHLL rdx;U1J-�)6OZ'J f HNI [b 7y 7•JJ r. 1-4
15 . The Defendant denies the averment contained in
Paragraph 15 of the Complaint .
16 . The Defendant denies the averments contained in
Paragraph 16 of the Complaint .
17 . The Defendant denies the averments contained in
Paragraph 17 of the Complaint .
18 , The Defendant denies the averments contained in
Paragraph 18 of the Complaint .
79 . The Defendant denies the averments contained in
Paragraph 19 of the Complaint .
20 . The Defendant denies the averments contained in
Paragraph 20 of the Complaint =
21 , The Defendant denies the averments contained in
Paragraph 21 of the Complaint .
22 . The Defendant denies the averments contained in
Paragraph 22 of the Complaint .
23 . The Defendant denies the averments contained in
Paragraph 23 of the Complaint .
24 . The Defendant denies the averments contained in
Paragraph 24 of the Complaint .
As to Plaintiff' s Complaint the Defendant says as
follows :
First Defenat
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ATTY'S SHLPPHRD&RLHLL Fax:416-N3b1135f Hpr !ts yy y JL r. l�
6 . The Defendant admits that the property is in the
GB zone and denies all the remaining averments
contained in Paragraph 6 of the Complaint .
7 . The Defendant admits that the structure was
removed and denies the remaining averments
contained in Paragraph 7 of the Complaint .
8 . The Defendant admits that a zoning permit
application was filed and says that the permit
speaks for itself ; the Defendant denies all the
remaining averments contained in Paragraph 8 of
the Complaint .
9 . The Defendant admits that the Building
Commissioner denied the application stating that a
finding was required and denies all the remaining
averments contained in Paragraph 9 of the
Complaint .
10 . The Defendant admits that a finding application
was filed and says that the finding speaks for
itself ; the Defendant denies the remaining
averments contained in Paragraph 10 of the
Complaint .
11 . The Defendant admits that the finding application
was filed and denies the remaining averments
contained in Paragraph 11 of the Complaint .
12 _ The Defendant admits the averments contained in
Paragraph 12 of the Complaint .
13 . The Defendant denies the averments contained in
Paragraph 13 of the Complaint .
14 . The Defendant denies the averments contained in
Paragraph 14 of the Complain t- .
- 2 -
H I I Y'S 5HLrrHKOWLHLL f dX 41 J-JtSbLyJ( Hpr- to
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE,SS SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 99-104
CHERRY REALTY, INC.
Plaintiff
' ANSvy OF THE
j
V. DEFENDANTS, ZONiNv
BOARD OF APPEALS OF THE
ZONING BOARD OF APPEALS OF THE CITY OF I CITY OF NORTHAMPTON and
NORTHAMPTON and MARK NEJAME, BOB f MARK NEJAME, BOB RIDDLE,
RIDDLE, and LARRY SNYDER, Individual and LARRY SNYDER, TO
Members Thereof, and JAY FLEITMAN and MARY PLAINTIFFS'COMPLAINT
LOU STUART STEWART,
Defendants
Defendant Northampton Zoning Board of Appeals hereby
responds to the enumerated Paragraphs of the Complaint
of the Plaintiff , Cherry Realty, Inc . , as follows :
1 . No answer required.
2 . The Defendant neither admits nor denies the
averments contained in Paragraph 2 of the
Complaint .
3 . The Defendant neither admits nor denies the
averments contained in Paragraph 3 of the
Complaint .
4 . The Defendant admits the averments contained in
Paragraph 4 of the Complaint .
5 . The Defendant admits the averments contained in
Paragraph 5 of the Complaint .
- 1 -
ATTY'S SHEPPHKD&KEHLL HPr ZZ3 yy y•J1 r. 11
Pursuant to Massachusetts General Laws(MGL)Chapter 40A,Section 11,no Finding or any
extension,modification or renewal thereof,shall take effect until a copy of the decision bearing
the certification of the City Clerk that twenty days have elapsed after the decision has been
filed,or if such an appeal has been filed that it has been dismissed or denied,is recorded in the
Hampshire County Registry of Deeds or laud Court,as applicable,and indexed under the
name of the owner of record or is recorded and noted on the owner's certificate of title.The fee
for such recording or registering shall be paid by the owner or applicant.It is the owner or
applicant's responsibility to pick up a the certified decision of the City Clerk and record it at the
Registry of Deeds.
The Northampton Zoning Board of Appeals hereby certifies that a Finding has been GRANTED
and that copies of this decision and all plans referred to in it have been filed with the Planning
Board and the City Clerk.
Pursuant to Massachusetts General Law Chapter 40A,Section 15,notice is hereby given that this
decision is filed with the Northampton City Clerk on the date below.
If you wish to appeal this action,your appeal must be filed pursuant to MGL Chapter 40A
Section 17,with the Hampshire County Superior Court or the Northampton District Court and
notice of this appeal filed with the City Clerk within twenty(20)days of the date this decision
was filed with the City Clerk..
Applicant: Jay Fieltman and Mary Lou Stuart-332-334 Pleasant Street
Decision Date: February 25, 1999
This Decision was Filed with the City Clerk on: March 25, 1999
MAR 2 5 1999
r
CITY CLERKS OFFICE
NORTHAMPTON, MA 01060
"A tr C y p
llerk Attes " tiP9 99�
City of Northampton
CITY CLERKS OFFICE
NORTHAMPTON. MA 01060
Hi 1Y'S SHLFVHKVKKLHLL V8X;4 Hpr zo yy •DU r. lu
Conditions imposed with this Finding are as follows:
1. The applicant must provide four off--site parking spaces,as required is the
Planning Board permit associated with this use.
MAR 2 5 1999
CITY CLERKS OFFICE
NORTHAMPTON,MA 01060
HI IY 5 :,mLrrHKV6KtHLL haX HN( zo yy y•Ju r,vy
Office of Planning and Development l
City of Northampton
City Hail - 210 Main Street
Northampton, MA 01060 • (413) 587-1266
FAX(413)587.1264-EMAIL planning®city•northampton.ma.us
*Conservation Commission *Historical Commission M R
•Planning Board • Housing Partnership
*Zoning Board of Appeals
MAR 2 5 1999
DECISION OF CITY CLERKS OFFICE
N RTHAMPTON ZONING BOARD OF APPEAU NORTHAMPTON. MA 01060
APPLICANT: Jay Fleitman and Mary Lou Stuart
APPLICANT'S ADDRESS: 15 High Meadow Road
Florence,MA 01060
OWNER: Jay Fleitman and Mary Lou Stuart
OWNER'S ADDRESS: IS High Meadow Road
Florence,MA 01060
RE LAND OR BUILDINGS IN NORTHAMPTON AT: 332-334 Pleasant Street
ASSESSOR'S MAP and PARCEL NUMBERS: MAP#32C PARCEL#179
At a meeting conducted on February 25, 1999, the Northampton Zoning Board of
Appeals unanimously voted 3:0 to grant the request of Jay Fleitman and Mary Lou Stuart for
a FINDING under the provisions of Section 9.3 (2)(B)in the Northampton Zoning Ordinance
for a change in use on a pre-existing nonconforming lot to a general office building for
property located at 332-334 Pleasant Street,also known as Assessor's Map 32C,Parcel 179.
Zoning Board Members present and voting were: Chair Mark Warne, Bob Riddle and Larry
Snyder.
The Findings of the Board under Section 9.3 (2)(B) for a change in use of a pre-existing non-
conforming lot were as follows:
I. The Board found that the requested use for a general office building would not be
substantially more detrimental to the neighborhood than the previous non-conforming use
as a four-family residence. The applicant presented that the use would generate less trash
and sewage than the four-family structure,and members were persuaded that overall
traffic to the property would not increase to the point of detriment,since the proposed use
would generate less traffic on the weekends and in the evenings.
9 1999
ORIGINAL PRINTED ON RECYCLED PAPCn
CITY CLERKS OFFICE
NORT40APiON. MA 01060
HI IY"5 SHLFI`HKV6KLHLL HpfIn "yy y:Ly I'.Ut5
its effects on the neighborhood than the residential
structure.
24 . The decision of the Defendant Board in granting the
Zoning permit exceeds the authority of the Defendant
Board and is arbitrary, capricious and founded on legally
untenable grounds
WHEREFORE the Plaintiff prays this honorable Court as
follows:
1 . To annul the decision of the Defendant Northampton Zoning
Board of Appeals; and
2 T make such other or further decree as justice and
equity may require
Respectfully submitted,
CHERRY REALTY, INC.
APR 9 1999 By
Alber E. Bessette, Jr. , Esq.
BBO #554336
CITY CLERKS OFFICE 134 School street
NORTHAMPTON. MA 01060 Granby, MA 01040
(413) 534-2184
(413) 534-2223 Facsimile
HI IY"5 SHLrrHKV6KtHLL rdX 41.S-5tSb1ys( Hpr 16 "yy 'J:2y I.U(
not be substantially more detrimental to the neighborhood
than the existing conforming use when said change,
extension or alteration is to a conforming use which
requires the same or less minimum lot area, minimum lot
width and frontage than is required for the present use.
21 . The decision of the Defendant Board in granting the
Zoning permit under Section 9.3 (2) (B) was improper
because there is no "conforming use" currently being
conducted upon the locus; the vacant lot is not a `pre-
existing nonconforming lot" pursuant to paragraph 4 of
G.L. c. 40A, §6; and the `pre-existing non-conforming
structure" was extinguished when the four story
residential structure was completely demolished.
22 . The decision of the Defendant Board in granting the
Finding Application under Section 9.3 (2) (B) was also
improper because the construction of an office building
in place of the demolished four family residential
structure does not constitute a `change, extension or
alteration" to the demolished residential structure.
Likewise, the construction of the office building is not
a `reconstruction" of the residential structure pursuant
to G.L. c. 40A, 96.
23. The decision of the Defendant Board in granting the
Finding Application was also improper because the
proposed use as an office building does not reflect the
nature and purpose of the prior use as a residential
dwelling; there is a difference in the quality,
characteristic and degree of use between an office
building and a four family, four story residential
dwelling; and an office building is different in kind in
HI IT J J>MLrrmKVNKLHLL rdX.41D-D00Ly.)( HPF ZO yy 1j.Z6 r".u0
structure failed to meet the minimum requirements of the
ordinance, including square footage and parking
requirements.
16. The vacant lot upon which once stood the four Story
residential structure is not a nonconforming lot pursuant
to G.L. c.40A, §6 because it is not a lot for single and
two-family residential use, it does not have at least
five thousand square feet of area and the proposed new
use and structure (office building) does not constitute
original construction.
17. Because the vacant lot is not a nonconforming lot, the
new structure (office building) must conform to section
6-1 of the ordinance, which requires a minimum lot size
of 6, 000 square feet in a General Business zone. It does
not.
16 . The Defendant Board' s finding that the vacant lot
constituted a non-conforming lot was founded on legally
untenable grounds. Consequently, the Board lacked the
authority to approve Fleitman and Stewart' s Finding
Application.
19. Even if the Northampton Zoning Board of Appeals had
the authority to consider Fleitman and Stewart' s Zoning
Application, their reliance on Section 9. 3 (2) (B) of the
ordinance was improper.
20. Section 9.3 (2) (B) of the Ordinance states that a
conforming use on a pre-existing nonconforming lot or in
a pre-existing nonconforming structure may be changed,
extended or altered with a finding from the Zoning Board
of Appeals that such change, extension or alteration will
HTTY'S SHEPPHRD&REHLL Fax:413-5862937 Hpr 28 '99 9:28 P.05
project 'represents a change in use of a nonconforming
lot. Prior building was 4 family residential that burned
and was subsequently demolished."
11 . On or about September 3, 1996, Fleitman and Stewart's
Finding Permit Application was filed with the Northampton
City Clerk.
12. On March 25, 1999, the Northampton Zoning Board of
Appeals, after a public hearing, allowed Fleitman and
Stewart' s Finding Permit Application pursuant to Section
9.3 (2) (B) of the Ordinance on the grounds that the
requested use for general office building would not be
substantially more detrimental to the neighborhood than
the previous non-conforming use as a four family
residence.
LEGAL, ALLEGATIONS
13, When Fleitman and Stewart completely demolished the
four story four family residential structure, they
extinguished and abandoned the nonconforming structure
and use, pursuant to G.L. c. 40A, 56.
14 . The proposed office building constitutes a new use and
structure that must comply in all respects with current
zoning and dimensional requirements of the ordinance,
including square footage, frontage and parking
requirements.
15. The Defendant Board should have denied Fleitman and
Stewart' s Finding Application because the new use and
HI IY 5 S>Mtf'F'HKV6KLHLL rdX;415-525b1y5( Hpr 2t; "yy 'J;2( I'.U4
General Business (GB) zone was damaged by fire. The 4
family residential structure was a non-conforming
structure and use having been lawfully constructed and
used as a four family residence prior to the enactment of
the ordinance. However, after passage of the ordinance,
multiple family residential structures exceeding 3
stories were disallowed in a General Business (GB) zone. 15, E
7. Shortly after the fire, Fleitman and Stewart purchased I�Zua � ��
the Locus and, within six to eight months thereafter,
completely demolished the 4 family structure, including ;r&AI
the removal of the existing foundation.
8. On or abou November 15, 1997, and Stewart file v f17 /
with the Nor --,C-i y Clerk a Zoning Permit /�,/Q�cf 7Te'�
Application to construct a two-story building for general 1`(4-eQ
office space and six parking spaces upon the Locus. The
Zoning Permit Application indicated that the project did
not meet current zoning and dimensional requirements in
that the lot had insufficient square footage, frontage,
building square footage and parking spaces .
9. On or about November 26, 1997, Anthony L. Patillo,
Northampton building Commissioner, denied Fleitman and
Stewart' s Zoning Permit Application stating that a
finding was required under Northampton Zoning Ordinance
section 9.3, citing `change in use nonconforming lot."
10. On or about August 26, 1998, Fleitman and Stewart sa-6 - 9
submitted to the City of Northampton Finding Application
seeking to construct a one-story building for general
office space and six parking spaces. In their
application, Fleitman and Stewart indicated that the
H1 1Y'S SHEFFHKUKKtHLL Fax:41S-5f3b296( Hpr 28 '99 9:2b F.US
3. The Defendants Jay Fleitman (hereinafter 'Fleitman" ) and
Mary Lou Stewart (hereinafter `Stewart" ) are the owners
of property located at 332-334 Pleasant Street,
Northampton, Hampshire County, Massachusetts as shown on
the Northampton Assessors records as Map 32C, parcel 179
(hereinafter the `Locus" ) . The Locus contains
approximately 4, 145 square feet.
4 . The Defendant Northampton Zoning Board of Appeals is a
duly constituted municipal board and is the granting
authority with respect to permitting changes, alterations
or extensions to nonconforming structures or uses under
the City of Northampton Zoning Ordinance (the
`Ordinance" ) .
5. The individual Defendants Mark NeJame, Bob Riddle and
Larry Snyder are members of the Northampton Zoning Board
of Appeals and reside respectively:
Mark Nejame,
47 High Street
Florence, Massachusetts 01062
Bob Riddle
47 Water Street
Leeds, Massachusetts 01053
Larry Snyder
196 Overlook Drive
Florence, Massachusetts 01062
Factual Allegations
6. On or about., October 29, 1996, four family, four story
residential building located on the Locus, owned by Evan
Daniels of Northampton, Massachusetts and located in a
RTTY'S SHEPPRRD9RERLL Fax:413-5852937 Rpr 28 '99 9:25 P.02
A TRUE COWY
ATTO" 40100jk&MALTH� OF MASSACHUSETTS
YY��'�� CLERK MAG��T OF THE TRIAL COURT
HAMPSHIRE, SS. SUPERIOR COURT
CIVIL ACTION NO.
LO
TY x
CHERRY REALTY, INC_
Plaintiff ) N
Vs.
L3
ZONING BOARD OF APPEALS of
OF THE CITY OF NORTHAMPTON )` �� LM
And MARK NEJAME, BOB RIDDLE )��;: ;,', ,� 9 1999
And LARRY SNYDER, Individual: )I
Members Thereof, and JAY )
FLEITMAN and MARY LOU STUART CITY CLERKS A 01
� NORTIIAMPION, MA 01060
STEWART, )
Defendants )
Description of the Matter
I. This is an action pursuant to G.L. c. 40A §17 to appeal
the decision of the Northampton Zoning Board of Appeals,
which approved a petition for a change in a pre-existing
nonconforming use or structure. This court has
jurisdiction pursuant to General Laws, Chapter 40A, X17.
Parties
2. The Plaintiff, Cherry Realty, Inc. , is, the record owner
of certain real property located at 300 Pleasant street,
Northampton, Hampshire County, Massachusetts . 300
Pleasant Street abuts property located at 332-334
Pleasant Street, Northampton, Hampshire County,
Massachusetts.
ATTY'S SHEPPARD&REALL Fax:413-5862937 Apr 28 '99 9:25 P.01
` i
FAX COVER SHEET -.$ �-
T OF BU
JANET M. SHEPPARD
Attorney-at-Law Attorney-at-Law
76 Masonic Street 76 Masonic Street
Northampton,MA 01060 Northampton,MA 01060
(413) 585-58891Fax: (413) 586-2937 (413) 584-0177/Fax: (413) 586-2937
Date: Li
Time:
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