10D-017 TACEY (17) =.Ilk
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�► �+ 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 This permit was
revoked by the Building Inspector in March, 1984 , prior to any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,
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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.
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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
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