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10D-017 TACEY (30) l DECISION OF NORTHAMPTON ZONING BOARD OF APP JO ) 2 DEPT 1 m060 ta At a meeting held on May 31, 1989, the Zoning Board of Appeals of the City of Northampton voted 2-1 (Weil) to DENY the request of Tacy Construction Company, Inc. for a Finding under the Provisions of Section 9 . 3 of the Northampton Zoning Ordinance that the concentration on one parcel of a pre- existing, nonconforming use previously spread over two adjoining parcels at 175 Main Street, Leeds, will not be substantially more detrimental to the neighborhood than the prior use. Present and voting were Chairman William Brandt, Dr. Peter Laband, and M. Sanford Weil, Jr. The Findings are as follows: Prior to the division of the Parcel, Parcels 17 and 48 of Sheet 10D of the Northampton Assessor' s Maps were one parcel, upon which a pre-existing, nonconforming use of "Contractor ' s Yard" existed. The original parcel has now been divided, with Parcel 48 being owned by Tacy Construction Company, Inc. , which seeks a Finding to allow concentration on Parcel 48 of the activity which had previously been spread over what is now Parcel 48 and Parcel 17. The Board finds that such concentration and intensification is substantially more detrimental to the neighborhood, which is zoned Residential, and further finds that counsel for the Applicant has shown no evidence to suggest otherwise. William Brandt, Chairman Dr. Peter Laband M. Sanford Weil, Jr. . L x Northampton Zoning Board of Appeals May 31, 1989 Meeting Page One The Northampton Zoning Board of Appeals met at 7:00 p. m. on Wednesday, May 31, 1989 in Council Chambers, Wallace J. Puchalski Municipal Building, to announce a decision on the Application of Tacy Construction Co. , Inc. for a finding that the concentration on one lot of a pre-existing nonconforming use previously spread over two adjoining lots at 175 Main St. , Leeds, will not be substantially more detrimental to the neighborhood than the prior use. Present and voting were Chairman William Brandt, Dr. Peter Laband, and M. Sanford Weil, Jr. Dr. Laband moved the minutes of the prior meeting be accepted without reading. Mr. Weil seconded, and the motion passed unanimously. Mr. Weil read a prepared statement [a copy of which is attached and made part of these minutes] stating he was in favor of granting the finding with the stipulation that the contractor' s yard use be totally eliminated from adjacent Parcel 17, and in favor of a common curb cut to service both parcels. Dr. Laband said he views this as a residential area, and views the splitting of the original parcel to now have two businesses doubles the intensity of the commercial activity in a residential zone. He stated, "Counsel [for the Applicant] has shown no evidence that the intensity of use will not be substantially more detrimental to the neighborhood. The intent of the ordinance was not to allow this. Even though there is an agreement with the neighbors, the increase will be so substantial it will be more detrimental, and I 'd vote 'no. ' " Ch. Brandt said, "I concur with Peter. Putting two businesses there is an intensification, and is substantially more detrimental to the neighborhood. Counsel did not present a cogent argument that it will not be substantially more detrimental--there were no comments on traffic. " Mr. Weil asked his colleagues to "Please react to the neighbors ' agreement, " but Ch. Brandt replied, "That' s inappropriate. " Dr. Laband moved that the Application for a Finding be denied. Mr. Brandt seconded, and the motion passed 2-1 (Weil) . Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. Id " William Brandt, Chairman Northampton Zoning Board of Appeals May 17 , 1989 Meeting The Northampton Zoning Board of Appeals met at 7:05 p. m. on Wednesday, May 17 , 1989 in Council Chambers, Wallace J. Puchalski Municipal Building, to conduct Public Hearings on two related applications: Tacy Construction Co. , Inc. seeking a Special Permit and Finding relative to a contractor ' s yard use on Parcel 48 , Sheet 10D at 175 Main Street, Leeds, and James and Eugene Tacy seeking "a building permit and Site Plan Approval" for a 60 ' x 60 ' building for a Construction Supply Establishment on Lot 17, which directly abuts Parcel 48 . Present and voting were Chairman William Brandt, Dr. Peter Laband, and M. Sanford Weil, Jr. Ch. Brandt opened the Public Hearing by reading the Legal Notice as published twice in the Daily Hampshire Gazette, the Application, a memorandum from the Planning Board, a memorandum from Asst. City Solicitor Fallon, and inserted in the record without reading, the "neighborhood agreement, " a document signed by the Tacys outlining the primarily landscaping measures they promised to take to satisfy the abutters. Atty. Patrick Melnik appeared for Tacy Construction Co. , Inc. , and explained that the Tacy' s intent is to abandon the use of the contractor' s yard on Parcel 17, and concentrate it entirely on Parcel 48 . The use on 48 will not change, merely intensify, thus the request for a Finding. Dr. Laband pointed out that a contractor ' s yard is allowed by Special Permit ( 5 . 2[13] ) . Mr. Melnik said he expects this Board to grant a Finding, not a Special Permit, because "the last decision of this Board said that I need a Finding. " He went into some detail on the neighborhood agreement, which calls for a 6 ' high stockade fence set back five feet to allow for plantings, to screen the McCarthy and the church property, and for 50 ' of fencing atop the Mill River bank. There was some discussion between Dr. Laband and Mr. Melnik over the status of litigation, Mr. Melnik making the point that if he is granted a Finding, "we' ll drop the suit--it' s moot. " Miss Fallon interjected, "This is the quickest way for Gene [Tacy]--it' s what we've been telling him to do. " Mr. Weil was concerned about the fact that there is no physical separation of the lots, and wondered "how do we stop Tacy from using both lots for the contractor' s yard use?" Mr. Melnik replied, "You rely on his word to follow the provisions of the decision, and then enforcement if there' s a violation. " There was no one else present in favor or in opposition, but when general comments were solicited, Coun. LaBarge explained, "I represent 32 people who originally objected to this. There was a meeting and an agreement--all the original objectors agree with the concept. The church and Mrs. McCarthy are in agreement. " Returning to Mr. Weil' s point, Mr. Melnik pointed out that Lot 48 Northampton Zoning Board of Appeals May 17, 1989 Meeting Page Two does not have a curb cut, and since the City just installed new granite curbing and sidewalks, he thought they would probably not allow a curb cut for Lot 48, especially since Lot 17 has two of them. He said one of the two will be blocked by the fence, and then both uses will share the remaining cut. Coun. LaBarge pointed out that the neighbors don't want another curb cut that close to the bridge. Miss Fallon was asked for her opinion, and she stated, "If indeed, the contractor' s yard use is abandoned on 17, they need a Finding for the intensification on 48 . If you grant that Finding, then the Planning Board needs only to grant Site Plan Approval on 17, and they automatically get their Building Permit. You must condition your Finding on 48 that the use has been abandoned on 17, and I would like to review your decision before it is filed. " Dr. Laband and Atty. Melnik then entered into a lengthy discussion over Special Permit v. Finding, and the Chair cut them short, saying, "Don' t beat a dead horse. We said he needs a Finding and that' s what he' s asking for. " Dr. Laband then moved the Public Hearing be closed. Mr. Weil seconded, and the motion passed unanimously. Ch. Brandt then opened the Public Hearing on the Application of James and Eugene Tacy for Site Plan Approval. He read the Legal Notice as published twice in the Daily Hampshire Gazette, the Application, a memorandum from the Planning Board and a letter from the DPW. Atty. Melnik stated, "No Special Permit is sought. A Construction Supply Establishment is allowed by right. I want a Building Permit or a Finding. The Building Permit has been revoked, and I need some relief to get it reinstated. I suggest that this use is allowed by right, and the other use on this parcel has been abandoned. Give me a Finding on Lot 17 that the contractor' s yard use has been abandoned, and please order the Building Inspector to reinstate the Building Permit. " Ch. Brandt' s response was, "Until we give you a Finding on 48 , we will not instruct the Building Inspector to reinstate the Building Permit on 17. " Mr. Weil agreed that "we have to act on 48 before we can act on 17. " There was no one else present in favor or in opposition. Miss Fallon offered, "What you do on 48 determines what you do on 17. You must deny the contractor' s yard use on 17. If you give the Finding on 48 , they automatically get the Building Permit if there' s Site Plan Approval. " Ch. Brandt said he was not ready to decide tonight because he wanted to look at the curb cuts . Dr. Laband inquired if the proximity of the Mill River created any Conservation Commission Northampton Zoning Board of Appeals May 17, 1989 Meeting Page Three issues, and was told that it did, and they were in the process of resolution. Dr. Laband said that "we should put a condition on the Finding that, before a building can be constructed, the Wetlands Protection Act must be complied with. There was some discussion about a disagreement whether Lot 17 was in the flood plain at all, Mr. Tacy saying he had a letter from the ConsComm a couple of years ago stating that they had no jurisdiction over the building. It was generally agreed that a condition should be attached requiring compliance with any ConsComm rulings. Dr. Laband moved the Public Hearing be closed. Mr. Weil seconded, and the motion passed unanimously. Also present, in addition to those mentioned, was R. J. Pascucci, Board Secretary. ' J William B ndt, Chairman $ $ CITY OF NORTHAMPTON r ZONING BOARD OF APPEALS NORTHAMPTON, MASSACHUSETTS 01060 June 9 , 1989 RE: REQUEST OF TACY CONSTRUCTION CO. , INC. FOR A FINDING THAT THE CONCENTRATION ON ONE PARCEL OF A PRE-EXISTING NONCONFORMING USE PREVIOUSLY SPREAD OVER TWO ADJOINING PARCELS AT 175 MAIN ST. , LEEDS, WILL NOT BE SUBSTANTIALLY MORE DETRIMENTAL TO THE NEIGHBORHOOD THAN THE PRIOR USE. Pursuant to the Provisions of the General Laws of the Commonwealth of Massachusetts, Chapter 40A, Section 15, notice is hereby given that a decision of the Zoning Board of Appeals was filed in the Office of the City Clerk on June 9 , 1989 denying the Finding requested by Tacy Construction Co. , Inc. for property located at 175 Main St. , Leeds. If you wish to appeal this action, your appeal must be filed in Superior Court within 20 days from the date this decision was filed in the Office of the Northampton City Clerk. r Robert C. Buscher, Chairman