17C-248 (5) Even if a landowner can demonstrate that a
structure or use has the protection of the
6-year or 10-year statute of limitations, the
Zoning Act does not indicate what status such
a structure or use will have for purposes of
any further or future development . Although
this point has not been specifically addressed
by an appellate court , Durkin v Board of
Appeals of Falmouth . 21 Mass.App .Ct .450 ( 1986)
suggests that a structure or use that has
gained the benefit of the 6-year statute of
limitations perhaps should be treated as a
lawfully nonconforming structure or use . In
finding that a building . . . could be maintained,
the court stated:
"We interpret this provision as protecting the
use of the locus pursuant to the 1959 building
permit (and perhaps any uses reasonably similar
in character to the post office use and not more
detrimental to the community) from enforcement
of the zoning by-law, unless proceedings are
initiated within 6 years after the beginning of
an alleged violation . . . "
There is even a strong argument , in otherwords, that
the existing situation is essentially the same as a legal
nonconforming use and can be expanded or altered with just a
finding by the zoning board. There does not appear to be any
question , however , that the city has no basis or grounds to
deny a simple building permit for maintenance , repair or
rebuilding ( in the event of a fire or other casualty) . Since
a building cannot exist for long without occassional work
being done on it , that would be tantamount to the city
taking enforcement action against the violation that is
protected by the 10 year statute of limitations of Ch 40A,
sec 7.
NAY 51996
MEMORANDUM
The present building, consisting of a doctor's office
and one apartment . was constructed in approximately 1950 and
both the apartment and the office were occupied by Dr . Eaton
Freeman at that time . The use was allowed under a provision
in the ordinance that the professional person both work and
reside in the building.
Dr Freeman retired from the practice of medicine in
1973. From that time on . he rented the office to another
doctor and It has been a doctor's office continuously to the
present time , 46 years in total . There was, arguably . an
abandonment of the non-conforming use in 1975, two years
following the time that Dr . Freeman personally retired from
his practice , since the same person was not then both living
and working in the building.
Assuming that there was an abandonment (which the
applicant is not necessarily agreeing to, as the facts are
not known) . the present use of a professional person
occupying the office and a different person occupying the
apartment , has been illegal since 1975. G. L.Chapter 40A ,
sec 7, 2nd par . creates a statute of limitations prohibiting
the enforcement of the zoning ordinance against an alleged
violation unless the enforcement action is commenced within
10 years after the violation started. It is therefore clear
that the city cannot take any action to prevent a
continuation of the occupancy of the building that has been
going on since 1975.
It has been suggested that , even though the city cannot
take any affirmative enforcement action . section 10 .2 of the
zoning ordinance states that the owner of the property also
cannot obtain any permits, even a building permit , to do
work on the building. There would be , in other words, a
complete 'stand-off . '
The applicant submits that this interpretation is not
supported by a reading of section 10 .2 or the caselaw.
Section 10 .2 merely states that a permit must be obtained
for any new work . That new work , of course , has to comply
with the building code and the zoning ordinance . Neither the
wording of 10 .2 nor the definition of " zoning permit" lead
to the conclusion the a mere building permit to do repair ,
maintenance or re-construction of the same building, without
expansion of the structure or the use , could be refused.
A treatise on zoning law, Massachusetts Zoning Manual .
Vol II , pg 13-7, addresses this question as follows:
r
CITY OF hIORTHRMPTON TEL No . 1-41;5-
13-586-3726 May 14 ,96 15 : 10 Na .006 P .03
10. Do any signs exist on the property? YES_` NO
IF YES,describe size, type and location:
Are there any proposed changes to or additions of signs intended for the property?YES NO x
IF YES,describe size,type and location:
.1.1. ALL INFORMATION MUST BE COMPLETED, or PERMIT CAN BE DENIED DUB TO
LACK OF INFORMATION.
No changes are intended for an of these ' e Bmi , t&rewa to
$ 5' by the 8ttfldiap� Dspartmeat
Required
Existing Proposed By Zoning
Lot size 23,850 s.f. same
Frontage
Setbacks - front
- side L- R: L: R•
- rear
Building height
Bldg Square footage
%Open Space:
(Lot area minus bldg
' &paved parking)
.a-f marking spaces
rof Loading Docks
Fill:
--0701-time--& location)
13 . Certification: I hereby certify that the information contained herein
4, is true and accurate to the best of my knowledge. j
DATE: May- 15, 1996 APPLICANT'S SIGNATURE
fir; NOTE: fssuanoo of a zoning 9 permit does not relieve an ap lloant"s burden to oompty with all
g e-0qulremento and obtain all required permits from the Board of Health, Conservation
Dc)lmrnlsston. Department of Pubiio Works and other appiloable permit granting authof-itlos.
i.?., FILE
CITY OF NORTHAMPTON TEL No . 1-413-586-3726 May 14 , 96 15 : 10 No -006 P . U%
F 1
�� ! 5 1996 Fi l e No. CCw 9"
MAY
dE P c sii arc; r. ZC?N NG PERMIT APP
L.ICA.TI4N (510 . 2)
. 4wof Tl l�^.i,` LEASE TYPE OR PRINT ALL INFORMATION
1. Name of Applicant: Lawrence C. O'Connor
Address: 62 Lilly St. , Florence, MA 01060 Telephone: 584-3636
Lawrence Freeman, Trustee
2. Owner of Property:
Address: 50 Liswell Drive, Feeding Hills, MA Telephone:
3. Status of Applicant: Owner x Contract Purchaser Lessee
Other(explain):
4. Job Location' 65-67 North Main Street, Florence
Parcel Id: Zoning Map# / "7� Parcel# District(s):���
(TO BE FILLED IN BY THE BUILDING DEPARTMENT)
5. Existing Use of Structure/Property See attached memorandum
6. Description of Proposed Use/Work/Project/Occupation: (Use additional sheets if necessary):
I intend to maintain the same use as has been for 20 years. I need a determination
that this will be allowed, and that building permits will be granted for repair,
maintenance or re-building as necessary.
7. Attached Plans: Sketch Plan Site Plan Engineered/Surveyed Plans
Answers to the following 2 questions may be obtained by checking with the Building Dept or Planning Department Files.
8. Has a Special PermiWahance/Finding ever been issued for/on the site?
X
NO DON'T KNOW YES IF YES,date issued:
IF YES: Was the permit recorded at the Registry of Deeds?
NO DON'T KNOW YES
IF YES: enter Book Page and/or Document#
9. Does the site contain a brook,body of water or wetlands? NO x DON'T KNOW YES
IF YES, has a permit been or need to be obtained from the Conservation Commission?
Needs to be obtained Obtained ,date issued:
(FORMS CONTINUES ON OTHER SIDE)
'1
FILE I-
2 LI51996
TT/CONTACT PERSON: /
ADDRESS/PHONE:
PROPERTY LOCATION:
MAP PARCEL: ZONE
THIS SECTION FOR-OFFICIAL USE ONLY:
PERMIT APPLICATION CHECKLIST
ENCLO D REQUIRED DATE
Fee Pnifi
lRyTildin2 Permit MUM nut
THE FOLLOWING ACTION HAS BEEN TAKEN ON THIS AP ICATION-
Appj,oved as presented based on information presented
Dllenied as presented:
Special Permit and/or Site Plan Required under: §
PLANNING BOARD ZONING BOARD
Received&Recorded at Registry of Deeds Proof Enclosed
Finding Required under:§ w/ZONING BOARD OF APPEALS
Received&Recorded at Registry of Deeds Proof Enclosed
I/
Variance Required under: §_,�w/ZONING BOARD OF APPEALS
Received&Recorded at Registry of Deeds Proof Enclosed
Other Permits Required:
Curb Cut from DPW Water Availability Sewer Availability
Septic Approval-Bd of Health Well Water Potability-Bd Health
Permit from Conservation Com s ' n
Signature of Building h? P ate
NOTE:Issuance of a zoning permit does not relieve an applioants burden to oompty with all
zoning requirements and obtain all required permits from the Board of Health, Conservation
Commission, Department of Publio Works and other applioable permit granting authoritles. —