25C-130 (2) differently, the Zoning Board's exercise of discretion is entitled
to stand.
ORDER
The decision of the Zoning Board of Appeals is affirmed.
�e
YZ/,
,Tahn F. rphy, Jr.
,7lustice of the Superior Court
Entered: August 25, 1994
6
Board of Appeals' exercise of that discretion in the case at bar
was not based on legally untenable grounds, nor was the decision
arbitrary or capricious.
9 . Section 11. 11 of the City Zoning Ordinance. (Exhibits No.
9 & 10) , sets forth the criteria for Home Occupation Special
Permits. This section requires that the occupation must be
" . . . .clearly incidental and secondary to the use. . . for
residential/dwelling purposes" . The Zoning Board of Appeals was
clearly justified in questioning whether plaintiffs would meet this
requirement even if the permit was granted.
Section 2 of the Ordinance, (Exhibit No. 7 & 10) , does
not specifically exclude the office of a psychoanalyst. However,
the discretionary aspect of the Zoning Board of Appeals' authority
regarding Special Permit justifies the ruling in the case at bar.
Section 8 . 1. 3 of the Ordinance, (Exhibit No. 10) ,
requires 4 off-street parking places on site. Section 2 . 1 define's
a space as 8-1/2 feet wide, 18 feet long with a maneuvering area
of 18 feet directly behind the space. The requirement could not
possibly be complied with by plaintiffs.
The Zoning Board of Appeals made findings that the
requested use of a psychotherapy home occupation would be
detrimental to the neighborhood for which the use was requested.
Those findings are a sufficient basis to require that, even if
another board or a judge reviewing the decision could find
5
with her husband was going through a bad period and that both felt
time apart would be helpful . It was her intention that her private
practice would continue to be part-time and she would continue as
an employee of Tri-County Youth. Granting of the permit would
allow her to reduce her rental expense she now pays for her office
on Center Street.
6. The Senior Planner for the City of Northampton inspected
the premises on Elizabeth Street for the Zoning Board of Appeals.
It was her opinion that the property would lose its "grandfather"
rights if the permit was granted, and that the property would not
conform to the off-street parking requirement which requires space
for 4 motor vehicles on site for a two family dwelling.
7 . The courts view of the area disclosed that Elizabeth
Street is a well maintained area in an older section of the city.
The houses are mostly multi-family and the street intersects with
Route 9, the main highway between Amherst and Northampton. The lot
has 60 foot frontage on the street and is approximately 57 feet
deep. (Exhibit No. 13) . The street is narrow and it would be
impossible to provide 4 or 5 off-street parking spaces on site.
(Exhibits No. 11 and 12A-D) . There is no side yard to allow
expansion. The 3 motor vehicles shown in Exhibit 11 are almost
encroaching on the sidewalk area.
RULINGS
8. The Zoning Board of Appeals has discretionary power to
determine whether a special permit will be granted. The Zoning
4
s
during the week on working days and would return to her home in
Plainfield on weekends. The plaintiff John Fisher would continue
to live in their Plainfield home which they owned jointly, and
which they intended to retain.
4 . Plaintiff Sebern Fisher is a psychologists presently
employed in the Northampton office of the Tri-County Youth Program
on a 25 hour per week basis. She also has an office at 16 Center
Street in Northampton where she conducts her part-time
psychotherapy practice. Mrs. Fisher commutes the 30 miles between
Plainfield and Northampton each day she works.
5. In October of 1993 subsequent to the Zoning Board of
Appeals' denial of the application and pending hearing in the
Superior Court, the plaintiffs went forward with the purchase of
the residence at 32-34 Elizabeth Street. Both apartments are now
rented to third parties. The plaintiffs continue to reside in
Plainfield.
Mrs. Fisher testified that, if the special permit is
granted, she intends to modify the second floor apartment into a
combination office and residence. It would be her intention to
occupy that apartment during the week, and she and her husband
would retain the Plainfield residence where her husband would
continue to live full-time. Mrs. Fisher claims to have spur
problems in her neck that is putting pressure on her spine. If the
permit was granted she could avoid her daily commute, and thus
reduce her chances of a motor vehicle accident which might
aggravate her condition. She also testified that her relationship
3
at in Northampton. The agreement was
conditioned upon plaintiff, Sebern Fisher, being allowed to operate
a part-time home occupation for the practice of psychotherapy in
one of the apartments. On July 7 , 1993 the plaintiff filed an
application for a permit with the building inspector which was
denied on the basis that a special permit and/or site plan was
required. (Exhibit No. 1) . On July 15 , 1993 the plaintiff filed
an application for a special permit and site plan requirement
waiver. (Exhibit No. 2) . In August of 1993 the Planning Board
granted the site plan waiver.
After a hearing, the Zoning Board of Appeals, on
September 22 , 1993 , voted 2 to 1 against granting the special
permit. (Exhibit No. 6) .
2 . In denying the special permit the Zoning Board of Appeals
found that the practice of psychotherapy is not complementary to a
residential neighborhood, would have the potential to create
additional traffic and increase vehicles in the neighborhood, that
the proposed use was similar to a medical office which was not
permitted in a residential district, and that the proposed plan did
not meet the requirement of the Zoning Ordinance for off-street
parking. (Exhibit No. 6) .
3 . The Zoning Board of Appeals considered the issue of
whether the applicants were eligible to apply for the permit since
neither were residenT15 of Northampton, nor present owners or
occupants of the house in question. (Exhibit No. 6 - Attachment
A) . At the hearing before the Zoning Board of Appeals the
plaintiffs testified that Sebern Fisher would be occupying the home
2.
COMMONWEALTH OF MASSACHUSETTS
A"J"i 2 6
A�pshYre,AIAJI Superior Court _
A ���` Civil Action No. 93-332
CLERK MAGtSTP
SEBERN FISHER and H. JOHN FISHER, ] HAMPSHIRE SS
Plaintiffs ] SUPERIOR COURT
] FILED
V80 ]
] AUG 2:5 1994
NORTHAMPTON ZONING BOARD OF ]
APPEALS, Peter Leband, Alex ]
Ghiselin and M. Sanford Weil, Jr. ] ���
Individual members thereof, ]
Defendants 1 CLERK/MAGISTRATE
FINDINGS, RULINGS AND- ORDER
This is an appeal under G. L. c. 40A, §17 , from the decision
of the City of Northampton's Zoning Board of Appeals' denial of
plaintiffs' application for a special permit to conduct a home
occupation in a two family dwelling at 32-34 Elizabeth Street in
Northampton, Hampshire County, Massachusetts .
The plaintiffs are husband and wife and reside at 268 West
Street, Plainfield, Massachusetts. The individual defendants are
members of the Northampton Zoning Board of Appeals. The case was
tried jury waived at the June, 1994 session of the Hampshire County
Superior Court.
Based upon the credible evidence, the exhibits, a view taken
by the court, and all of the reasonable inferences drawn therefrom,
I find as follows:
1. Sometime prior to July 1993 , the plaintiffs entered into
a purchase and sale agreement with the owner of the two family home
93 332
COMMONWEALTH OF MASSACHUSETTS
AUG 2 6
A Vie, ss. Superior Court t s
ATTEST •,f Civil Action No. 93-3,32 r�:'
CXSRK
H. JOHN FISHE FISHER,
Plaintiffs ]
2 6
VS. ]
NORTHAMPTON ZONING BOARD OF ]
APPEALS, Peter Leband, Alex
Ghiselin and M. Sanford Weil, Jr. , ]
Individual members thereof, J
Defendants 1
JUDGMENT ON FINDINGS BY THE COURT
This action came on for hearing before the court, Murphy, J.
presiding, and the issues having been duly tried and Findings
having been duly rendered, pursuant to said Findings, it is ORDERED
and ADJUDGED as follows:
1. The decision of the Zoning Board of Appeals of the City
of Northampton did not exceed its authority and no modification of
it is required.
2 . The Clerk shall within 30 days of entry of this judgment
send attested copies thereof to the Zoning Board of Appeals, Clerk,
and Building Inspector of the City of Northampton.
Dated at Northampton, Massachusetts this 25th day of
August, 1994 .
FORM OF JUDGMENT APPROVED:
•
By .
i0 fin F. Murphy, Ar. Cle agist to
ice of the uperior Court
A tr e cop
.Attes
Ci y Clerk
.City of Northampton