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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 5 - 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 3 - 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: #of pages: —7 To: Phone: Fax: From: MARIE) JANET ELAINE Re: CC: Message: If you do not receive all of the pages,please call our office as soon as possible. If you have received this facsimile transmission in error, please notify us immediately by tele- phone and return the original to the address listed above. Thank you. Confidentiality: The information set forth hereon and attached hereto is privileged, confidential, and intended only for the use of the addressee indicated above. If the recipient is not the person or entity so designated,you are hereby notified that any dissemination,distribution, or copying of this document or the attached pages is strictly prohibited