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10D-017 TACEY (17) =.Ilk II �► �+ R'�r`, CITY OF NORTHAMPTON MASSACHUSETTS CITY HALL 210 Main Street Northampton, MA 01060 JUN 2 5 687 LEGAL DEPARTMENT 586-6950 DEPT- OF BUILCING INSPECTIONS NUI?Trager i0�d, MA 01060 Patrick T. Gleason, Esq. City Solicitor Kathleen G. Fallon, Esq. June 24 , 1987 Assistant City Solicitor Marion Mendelson, Chairman Northampton Planning Board City Hall Northampton, MA 01060 RE: Tacy Appeal Dear Ms . Mendelson: I have received your request for my opinion on the issues involved in Mr. Tacy' s appeal to the Zoning Board of Appeals of Mr. Tewhill ' s denial of a building permit for the Tacy property on Main Street, Leeds . In response, may I submit the following. Mr. Tacy' s property is zoned SI . He operates a construction yard on that site, a use which currently requires a special permit in that zone. (A ' construction yard' is deemed to entail the open storage of raw materials and construction equipment) Mr. Tacy does not have a permit since the construction yard use predates the requirement for a special permit. Mr. Tacy' s construction yard is a pre-existing non-conforming use. In February, 1984 , Mr. Tacy received a building permit for a storage building on the subject property. This permit was revoked by the Building Inspector in March, 1984 , prior to any construction. Mr. Tewhill stated that action by the Zoning Board of Appeals would be necessary since the use on the site was non- conforming. Mr. Tacy then applied to the Zoning Board of Appeals for (1) a special permit for the operation of the construction yard and ( 2 ) a finding under Section 9. 3 (B) of the Zoning Ordinance to allow expansion of the non-conforming use to include a new use, a construction supply establishment, an allowed use in that zone, �oy i ' a and the construction of a 30x30 building to house both uses. On November 28 , 1984 , the Zoning Board of Appeals rendered a decision in which it purportedly granted a special permit ' for the purpose of establishing a construction supply business. . . ' The Board made no ruling on the request for a finding under Section 9 . 3 (B) . The relief granted was incorrect and not responsive to the application. Mr. Tacy requested a special permit for the construction yard use. The decision granted the permit to construct a building for the construction supply business use which is an allowed use in that SI zone. The request for a special permit was inappropriate and should have been denied. Since the Tacy business was a pre- existing non-conforming use, the appropriate method of changing, altering, or extending that use is through a finding under Section 9 . 3 (B) . Addition of a use allowed by right in that district is still an extension/alteration of the non-conforming use. Construction of a building to house either the pre-existing non-conforming use or the extended use is also an extension/alteration of the current use and requires a finding. Since the Zoning Board of Appeals did not act on the request for a finding on its decision of November, 1984 , that request was granted by default. However, like a special permit, a finding will lapse if the rights granted thereunder are not exercised within the specified time period. The Northampton zoning ordinance requires that substantial use of those rights commence within eighteen months. Mr. Tacy first applied for a building permit in November, 1986 . Clearly the eighteen month period had expired. The application that is the subject of this appeal was also filed after expiration of the eighteen month period. Since the construction contemplated would expand and/or alter a pre-existing, non- conforming use, and the finding granted in 1984 had expired, further action by the Zoning Board of Appeals is required prior to the issuance of a building permit. Mr. Tacy did try to obtain the required Zoning Board of Appeals approval earlier this year. He filed an application for relief almost identical with that filed in 1984 . On May 6 , 1987, in a split decision, the Zoning Board of Appeals ruled that the special permit request was not appropriate and denied the request for a finding under Section 9 . 3 (B) . Mr. Tacy has filed an appeal of that decision with the Superior Court. 2 In summary it is my opinion that the application for the building permit was correctly denied. Very truly yours, / Kathleen Fallon, Esq. Assistant city Solicitor cc: Edward Tewhill Zoning Board of Appeals 3