10D-017 TACEY (9) PATRICK J.MELNIK
ATTORNEY AT LAW
110 King Street
Northampton, MA 01060
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COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, S . S . DEPARTMENT OF THE TRIAL COURT
SUPERIOR COURT DIVISION
CIVIL ACTION NO. 88-350
` EUGENE A. TACY et al . , ]
Plaintiffs
. SEB4 M9
THE ' ZONING- BOARD OF APPEALS ] '
` �. .
' :FOR ,THE CITY OF NORTHAMPTON, ] �
.� . ;Defendants
MOTION TO AMEND A COMPLAINT
Now come the Plaintiffs, Eugene A. Tacy and James J. Tacy,
owners of real estate located on Main Street in Leeds , Hampshire
County, Massachusetts that is the subject matter of the
}° Complaint that was 'filed in this action.
f ,
Count I of the Plaintiffs ' Complaint that was previously
filed was an appeal of the decision of the Zoning Board of
Appeals revoking a foundation permit for the construction of a
building located on the premises owned by the Plaintiffs .
Subsequently, the Building Inspector revoked the building permit
that was issued for the building to be constructed on the
=` premises , and the Plaintiffs in this action filed an appeal of
the decision of the Building Inspector revoking their building
..permit.
The Zoning Board of Appeals recently heard the Plaintiffs '
appeal of the revocation of their building permit and the Zoning
r. Board of Appeals upheld the decision of the Building Inspector
JAWOffice ce .'
�ATFuCkj MELNIK to,_revoke the building permit.
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The substance of the revocation of the building permit is
procedurally and factually identical to the facts contained in
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Count I of this Complaint with respect to the revocation of the
foundation permit for the same building.
WHEREFORE, the Plaintiffs state that it would be in the
interest of judicial economy to amend the complaint to allow the
Plaintiffs in this action to pursue their appeal of the
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revocation of ,,the. building permit simultaneously with the
�remaining ;Counts of. this action.
WHEREFORE, the Plaintiffs move this Court to allow the
Plaintiffs to amend their Complaint by adding at the end of the
Complaint the following:
COUNT V
48 . The Plaintiffs restate the previous 47 paragraphs of this
`...;
Complaint','. as if restated herein.
49 . The Plaintiffs state that the Building Inspector for the
City of Northampton revoked their building permit , #632 ,
for the construction of the Construction Supply
Establishment on their property.
50. The Plaintiffs filed a Notice of Appeal with the City Clerk
for the City of Northampton on October 20 , 1988 requesting
review of the decision of the Building Inspector revoking
the permit. Copy of the Notice of Appeal is attached
. . hereto and marked Exhibit "E" .
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anpioa; Aoioso1'-- 51. The Plaintiffs state that the Zoning Board of Appeals heard
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the merits of the Plaintiffs ' appeal of the decision of the
Building Inspector to revoke the building permit.
52 . The Plaintiffs further state that at a meeting held on
January 26 , 1988 the Zoning Board of Appeals voted to
uphold the Building Inspector ' s decision to revoke the
,building permit issued to the Plaintiffs .
53. The Plaintiffs file this appeal pursuant to the provisions
of Massachusetts General Laws , Chapter 40A, Section 17
requesting this Court to annul the decision of the Zoning
Board of Appeals upholding the decision of the Building
Inspector revoking the Plaintiffs ' building permit. {
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54 . The members of the Zoning Board of Appeals sitting at the
Hearing with respect to the appeal of the Building
Inspector 's order revoking building permit #632 were
Sanford Weil of 96 Washington Avenue, Northampton - William
Brandt, as Acting Chairman of 314 South Street, Northampton
and Irene David of 213 Fairway Village, Northampton.
WHEREFORE, the Plaintiffs demand the following:
7 . That the decision of the Zoning Board of Appeals made at a
meeting held on January 26 , 1988 be annulled and the
building permit of the Construct' on Supply Establishment be
. ;ordered to be reissued by the ild' g Inspector.
February 3 , 1989
Patrick J. Melnik
110 King Street
Northampton, Mass. 01060
Law Ofica :4r;.
lging$tteet ti,4 % ,
. ,, 4gHAMPT
CITY OF NORTHAMPTON
$ ZONING BOARD OF APPEALS
NORTHAMPTON. MASSACHUSETTS 01060
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February 3 , 1989
RE: EUGENE TACY' S APPEAL OF THE BUILDING INSPECTOR'S REVOCATION
OF BUILDING PERMIT NUMBER 632.
At a Special Meeting held on January 26 , 1989, the Zoning Board of
Appeals of the City of Northampton voted unanimously to uphold the
decision of the Acting Building Inspector to revoke Building Permit
#632 which the Board felt had been erroneously issued to Eugene
Tacy for the construction of a Construction Supply Establishment
at 175 Main Street, Leeds.
Pursuant to the Provisions of the General Laws of the Commonwealth
of Massachusetts, Chapter 40A, Section 15 , notice is hereby given
that the Decision of the Zoning Board of Appeals of the City of
Northampton was filed in the Office of the City .Clerk on February
3 , 1989 .
If you wish to appeal this action, your appeal must be filed in
Superior Court within 20 days of the date this decision was filed
in the Office of the Northampton City Clerk.
Robert C. Buscher, Chairman
DECISION OF
NORTHAMPTON ZONING BOARD OF APPEALS
At a Special meeting held on January 26, 1989, the Zoning
' Board of Appeals of the City of Northampton voted to uphold
the decision of the Acting Building Inspector to revoke
Building Permit #632 which the Board felt had been
erroneously issued to Eugene Tacy for the construction of a
Construction Supply Establishment at 175 Main Street, Leeds.
Present and voting were Acting Chairman William Brandt, Irene
David, and M. Sanford Weil, Jr.
The findings were as follows:
The property is zoned Special Industrial. Prior to the
division of what was Parcel 7 of Sheet 10D of the Northampton
Assessor' s Maps, the entire parcel was used as a construction
yard. A construction yard use in an SI Zone requires a
Special Permit. Since the construction yard use of the site
predates the Special Permit requirement, it is a pre-
existing, nonconforming use, and as such, is regulated by
Chapter 40A, Section 6 of the Massachusetts General Laws, and
Section 9 of the Northampton Zoning Ordinance. Chapter 40A
states that a pre-existing, nonconforming use may be changed,
altered or expanded only after a Finding by the Zoning Board
of Appeals that the change, alteration, or expansion is not
substantially more detrimental to the neighborhood than the
current use. [Section 9.3 (b) , Northampton Zoning Ordinance] .
Tacy proposes to build a 60 ' x 60 ' building on the property,
and to use that building to house a construction supply
establishment, an allowed use in a Special Industrial Zone.
Tacy' s original application for zoning relief in 1984, and
the 1987 application, indicated that the building would be
used both for the nonconforming use (repairing and storing
equipment) , and the proposed new use. The application for
which a permit was granted in 1988 indicated that the
building would be used only for the construction supply
establishment. If the nonconforming use is still present on
the lot, the addition of either a building or a new use, even
if that use is allowed, is an expansion of that nonconforming
use and requires a Finding by the Zoning Board of Appeals
that the proposed use is not substantially more detrimental
to the neighborhood than the existing use.
The Planning Board did in fact approve an "Approval not
required under the subdivision control law" for the divided
site. The only zoning issue resolved by the approval of such
a plan is that each lot, as created in said plan, has
sufficient frontage for that zoning district. It does not
I
DECISION OF THE NORTHAMPTON ZONING BOARD OF APPEALS IN THE
mow" MATTER OF THE APPEAL OF EUGENE TACY OF THE REVOCATION OF A
BUILDING PERMIT ISSUED TO HIM.
PAGE TWO
give any guarantee that the lots will qualify as building
lots. Section 6.4 of the Northampton Zoning Ordinance states
that, "No lot. . .may be divided so as not to conform with a
provision of this ordinance. No group of lots in a common
ownership may be separated or the ownership of one or more
lots changed so as not to be in conformance with a provision
of this ordinance. " The pre-existing, nonconforming use has
been shifted to a fractional portion of the original lot,
thereby intensifying that use, which is an alteration which
requires a Finding by the Zoning Board of Appeals. Until the
issue of the intensification of the nonconforming use on one
lot is resolved, neither of the two lots shown on the "ANR"
plan conform to the Zoning Ordinance.
The Board found that the reasoning behind the Decision to
uphold the Appeal of the issuance of Foundation Permit #553
applies identically to this Decision to uphold the revocation
of Building Permit #632.
William Bra t, Chairman
M.Sanford Weil, Jr.
1
d
Irene David
Decision on Tacy Appeal from Action of Building Dept.
The Applicant appealed the revocation of a building permit issued by the
Acting Building Inspector following the suspension of the Inspector who had
previously issued the permit.
The basis of the appeal was the assertion by the Applicant that the permit
had been issued to build a structure for a Building Supply operation on a lot
in Leeds spot zoned Special Industrial where the construction was permitted
by right.
The building lot in question had been part of a larger parcel which had
contained a pre-existing nonconforming Construction Business. Prior request
for a Finding in order to build a 60X60 foot building on the larger lot and
to conduct a Building Supply operation had been denied by a split vote and
is on appeal .The larger lot was jointly owned by a',father and four sons.
Subsequently, the larger parcel was split so as to produce two parcels, each
of which conformed to dimensonal ' requirements. For convenience we will
discribe the northerly parcel as lot B and the southerly parcel as lot A.The
Construction operation was entirely moved onto lot B, exaserbating the prior
non-conformity by increasing the density of the operation.- To allow this a
further finding is required, in accordance with Section 6.4 of the zoning
ordnance. This has never been applied for.
After .creating the two parcels the father died and bequethed the Construction
Business to two sons. Then by an exchange of deeds the other two sons acquired
ownership of lot A. . They now claim that they can construct the building on
this parcel by right.
The Assistant City Solicitor has asserted that by increasing the density of
lot B without a Finding, lot A has been "tainted" and therefore still
falls under the limit of section 6.4. A use previously denied before being
separated from the balance of the larger parcel continues to be illegal .
Accordingly I find that the reasoning which produced the upholding of the
revocation of permit #553 to construct the footing also applies to the revocation
of permit 632 to construct the structure. I will vote to uphold the action of
the Building Dept. to revoke permit #632.
Northampton Zoning Board of Appeals
January 26, 1989 Special Meeting
Pane One
The Northampton Zoning Board of Appeals met at 5: 00 p. m. in Room
18 of City Hall on January 26, 1989, to announce a decision in the
matter of Eugene Tacy' s appeal of the revocation of Building Permit
#632 by the Acting Building Inspector. Present and voting were
Acting Chairman William Brandt, Irene David, and M. Sanford Weil,
Jr.
Mrs. David moved the minutes of the January 18, 1989 meeting be
approved, Mr. Weil seconded, and the motion passed unanimously.The
Secretary announced that Atty. Melnik, who represents the
Appellant, had delivered an original and two copies of a letter and
an 11-page "Memorandum in Support of Tacy' s Appeal" to the Board
Secretary at 10: 30 this morning. The Board acknowledged that the
documents had been tendered, but Mrs. David moved that they not be
accepted, since the Public Hearing was closed, and it would be
improper to accept testimony from Appellant, when no one else had
an opportunity to do so. Mr. Weil seconded, and the motion passed
unanimously. The documents were not shown to the Board members.
Mr. Weil opened by reading a prepared statement, a copy of which
is attached and made a part of these minutes. Mrs. David said she
fully agreed. Ch. Brandt said that he found in favor of the
Building Inspector. He stated, "I believe the separation of the
lot into two lots intensifies the pre-existing nonconformancy, and
a Finding is needed. I feel that Section 6.4 clearly states that
a lot cannot be divided so as not to conform. I interpret that as
requiring a Finding under Section 9 . 3 . I agree with Miss Fallon
that the lot is tainted, and the Building Permit was properly
revoked. "
Mr. Weil moved that the appeal be denied. Mrs. David seconded, and
the motion passed unanimously.
Also present, in addition to those mentioned, was R. J. Pascucci,
Board Secretary.
William Brandt, Chairman