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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. —