32A-138 (41) BROWNELL, GLISERMAN, WASHBURN,
GERVAIS & KAPLAN
ATTORNEYS AT LAW
NORTHAMPTONV MA 01060
413-584-7271
WILLIAM H. BROWNELL 11917-1984) TELEFAX 413-586-2156
SAUL GLISERMAN JOSEPH A. NICASTROt
TIMOTHY F. WASHBURN LYNN M. TRUSWELL
ERIC B. GERVAIS .alsoadmItted n New York
DAVID R. KAPLAN' tAm sa"Rted New Wa"P5Nre
March 29 , 1989
Mr . Bruce Palmer
Building Inspector
City of Northampton
Municipal Office Building
Northampton, MA 01060
Re : Complaint of Nohominium le alty Trust
Against 21-31 Main Street Associates
Dear Mr . Palmer :
This office represents the Complainant, Nohominium Realty
Trust, the owner of condominium units III , IV and V of the 21-31
Main Street Condominium, having a street address of 23 Main
Street, Northampton. The spaces owned by the Complainant contain
presently, Fitzwilly 's Restaurant and Pop 's Package Store. Filed
earlier was a formal Complaint setting forth the sections of the
Zoning Ordinance with respect to which the violations are
alleged, and this letter is an attempt to provide you with some
additional background and information concerning the alleged
violations.
By deed dated December 29 , 1986 , Roger W. Kirkwood conveyed
to the partners of 21-31 Main Street Associates the real estate
which is the subject of the Complaint. A copy of the deed is
attached hereto as Exhibit A. As you will see, the property is
described as consisting of two parcels. Parcel 1 referred to in
the deed is the parking lot adjacent to the railroad tracks, and
Parcel 2 is the location of the building in which Fitzwilly 's is
located and the vacant land used for parking in the back. The
deed is recorded in Hampshire County Registry of Deeds Book 2882,
Page 209 . Subsequently, as the Owner of the real estate, 21-31
Main Street Associates caused a survey to be made by Almer
Huntley, Jr. & Associates. On the basis of the survey a plan was
prepared dated February 6 , 1987 , and was recorded in the
Hampshire County Registry of Deeds at Plan Book 145 , Page 50 . In
order to have a description that conformed to this new survey and
plan, rather than the old description , 21- 31 Main Street
Associates caused a conveyance to be made to a straw by deed
Mr . Bruce Palmer March 29 , 1989
Page Two
dated April 10 , 1987 , recorded in the Hampshire County Registry
of Deeds Book 2950 , Page 24 . Immediately following, the straw,
one Jonathan J. Einhorn, reconveyed the property to 21-31 Main
Street Associates by deed dated April 10 , 1987, recorded in
Hampshire County Registry of Deeds Book 2950 , Page 28 . There was
no consideration for either conveyance and it appears that the
sole purpose was to enable 21-31 Main Street Associates to have a
deed into that entity which reflected the results of the survey
done by Huntley. The deeds contain a similar designation of
Parcel 1 and Parcel 2 consistent with Huntley 's Plan, the only
difference being that the description was now in metes and
bounds. A copy of the deed from Einhorn to 21-31 Main Street
Associates is attached hereto as Exhibit B.
In August, 1987 , 21-31 Main Street Associates had Huntley
prepare a revised version of the earlier February, 1987 Plan.
The only difference between the plans is that while the earlier
plan showed Parcel 2 to be a single undivided lot, the subsequent
plan showed Lot 2A in the front portion on Main Street with
14 ,103 square feet, and Parcel 2B in the back containing 6 ,643
square feet. The earlier plan showed Parcel 2 only, containing
20 ,746 square feet. The later Plan was stamped approval not
required by the Planning Board and bears the signature of Marion
Mendelson as one of the members of the Board . The Plan was
recorded on December 24 , 1987 at Plan Book 151 , Page 74 .
Although the Planning Board put its "approval not required" seal
on it, it also stamped on Parcel 1 (the side parking lot) the
following notation: "The Planning Board has made no determination
as to the conformance of this Lot with the provisions of the
Zoning Ordinance".
On December 31, 1987 , 21-31 Main Street Associates caused to
be recorded with the Hampshire County Registry of Deeds a Master
Deed and a Declaration of Trust for 21-31 Main Street
Condominium. The Master Deed is recorded at Book 3113 , Page 173
and the Declaration of Trust follows immediately. Both the Deed
and the Trust are dated November 25 , 1987 . The purpose of these
documents was to submit a certain portion of the land and all of
the building owned by 21-31 Main Street Associates to Chapter
183A of the General Laws of Massachusetts and thereby create a
Condominium. The portion of the land which was submitted to the
Condominium Statute consisted of Parcel 2A as shown on Huntley 's
later Plan, which contains 14 ,103 square feet out of the original
total of 20 ,746 square feet.
Section 4 .2 of Article IV of the Zoning Ordinance states
that, except as otherwise provided "any existing non-conforming
use , structure or lot will not become further non-conforming , "
Exhibit 2 to the Master Deed of 21-31 Main Condominium recites
that the existing brick and masonry building contains
Mr. Bruce Palmer March 29 , 1989
Page Three
approximately 55 ,042 square feet. The subject property is
located in a Central Business District, and under Article VI ,
Section 6 .2 , the Table of Dimensional and Density Regulations,
the maximum of floor area ratio is 2 .0 . Accordingly, the
building was already non-conforming by reason of its failure to
comply with the maximum floor area ratio, even if one were to
include the parcel containing 5 ,673 square feet owned by 21-31
Main Street Associates on the other side of Merrick Lane (Parcel
1 in the Plans) . By virtue of the condominiumization the
building became more non-conforming by reason of having had the
maximum floor area ratio increase over that which existed
previously. Further , both Section 6 .3 , Reduction of Lot Areas,
and Section 6 .4 , Separation of Lots, would seem to have been
violated. Even prior to the revision of November 3 , 1988,
Section 6 .4 prohibited the division of lots so as to become non-
conforming with the other provision of the Ordinance. More
specifically "No group of lots in a common ownership may be
separated or the ownership of one or more lots changed (other
than the entire group when sold as a single parcel) so as not to
be in conformance with a provision of this Ordinance. "
For many years prior to the acquisition of the subject
property by 21-31 Main Street Associates, and until very
recently, parking was provided on both the lot to the rear of the
building, designated as Parcel 2B on the latest Huntley plan, as
well as on Parcel 1 to the northeast of the building near the
railroad property. Although certain spaces were reserved for
owners and/or tenants of the building , spaces were available for
members of the public who were patronizing the businesses on the
ground floor or the offices on the upper floors. Almost all of
the available spaces were open to the general public during
evening hairs. Within the last two or three weeks, 21-31 Main
Street Associates has notified the Complainant as well as the
other tenants of the building that, henceforth, there would be no
parking permitted in either of the lots except to those people
who might care to rent parking spaces on a monthly basis at a
rate of between $50 .00 and $75 .00 per space per month. A local
tow truck operator has been given a contract for towing and the
lot is patrolled constantly during each 24 hour period . Any
vehicle not having a sticker indicating that it is entitled to
park there on a monthly permit basis is towed away. Among those
whose vehicles have been towed have been numerous patrons of
Fitzwilly 's restaurant, which is a tenant of the Complainant.
The table of off-street parking regulations contained in
Section 8 .1 of Article VIII of the Ordinance requires one space
per 500 square feet for commercial, retail and personal service
establishments in the Central Business District, and one parking
space for each 4 seats of total seating capacity plus 1 for each
500 square feet of gross kitchen area for a sit-down restaurant
Mr. Bruce Palmer March 29 , 1989
Page Four
in a Central Business District. Fitzwilly 's restaurant alone,
with 175 seats, would require approximately 44 parking spaces,
without including gross kitchen area. Clearly, the number of
spaces that had been provided up to now amounted to far fewer
than would be required if we were dealing with a new structure.
Section 8.1 does provide that no additional off-street parking is
required in the Central Business District for the continued use
or re-use of existing buildings, but Section 8 . 3 makes it
abundantly clear that "parking or loading spaces being maintained
in any district in connection with any use on the effective date
of this ordinance or any spaces subsequently provided in
accordance with this ordinance shall not be decreased or in any
way removed from service to the use originally intended to be
served, so long as said use remains, unless a number of parking
or loading spaces constructed elsewhere , such that the total
number of spaces conform to the requirements of the Tables of
this Article " Further, Section 8 .7 provides in part that
"required off-street parking spaces shall be provided on the sane
lot as the principal use they are required to serve. " In
addition, if the land areas in question are now being converted
to a commercial parking lot for monthly payers, Section 8 .10 of
the Ordinance imposes a number of requirements for parking lots,
most of which have not been complied with in this case.
There is an additional violation pertaining to parking, but
it is not a zoning issue. Under section 13A of Chapter 22 of the
General Laws of Massachusetts, the Architectural Access Board is
required to issue regulations designed to make public buildings
accessible to the handicapped. Any person who has lawful control
of private property used as off-street parking areas for
businesses where the public has a right of access as invitees or
licensees shall reserve parking areas for vehicles of handicapped
persons if the number of parking spaces in the area exceeds 15.
The Regulations issued, 321CMR, sections 23 .1 and following ,
require a certain number of handicapped spaces based on the total
spaces available. If the lot or lots in question have a total of
41-100 spaces the number required is 4% of the total but not less
than 3 . Since the previously provided spaces for the handicapped
are no longer available to the public, this Regulation has been
violated as well.
Section 9 .2 of Article IX of the Ordinance recites that it
applies to any change of a use. It is the Complainant ' s view
that providing the parking spaces required by Article VIII of the
Ordinance is a very different use than operating the property as
a commercial parking lot , which is its present use .
Consequently, there would seem to be a clear violation of Section
9.2 .
There are a number of additional violations under Article X.
Section 10 .2 requires the issuance of a Zoning Permit if an owner
Mr. Bruce Palmer March 29 , 1989
Page Five
is going to change the use or lot coverage, or displace the use
of a lot, without applying for or receiving from the Building
Inspector a Zoning Permit. Under Section 10 .4 it is unlawful to
use a lot which has been altered unless there has been a
Certificate of Use and Occupancy issued by the Building
Inspector . Section 10 . 11 deals with the site plan
review/approval process. Under subsection 2 , the definitional
section, a commercial parking lot is a major project, and the
requirements set forth in subsection 3 are superimposed over any
other requirements of the Zoning Ordinance. It is emphatically
set forth that the building inspector may not issue any building
permit for a major project until the site plan has been approved,
or deemed approved, by the appropriate authority.
Based upon all of the foregoing , the Complainant is
✓ equesting that the building inspector serve a Notice of
Violation and Order to 21-31 Main Street Associates, as the owner
or person responsible for the change in use which has created the
problems enumerated in this letter . The Order should direct the
d iscontinuance of the various unlawful actions which have
occurred forthwith, and further, should require that the owner,
u ntil such time as these issues may be resolved either by
settlement or by a court of competent jurisdiction, should reopen
the parking to those members of the public who are patronizing
the restaurant or retail stores located on the ground floor of
the building , as well as those who must gain access to the upper
floors of the building to conduct their business or other
affairs. The requirement to provide parking spaces in the
central business district as set forth in Article VIII of the
Ordinance is a rational and appropriate response to the problems
of any downtown business area . Although the owners of the
property have indicated to the management of Fitzwilly 's that
they are prepared to lease most of the parking lot to the
restaurant for at least $2,000 .00 per month , that is not a methcd
by which parking spaces are supposed to be provided in accordance
with the Ordinance. In any event, you may be assured of the
cooperation of both this office and the Complainant for purposes
of pursuing this matter , and if you require any additional
information or documentation, please feel free to call on me.
Ver tru ours,
Saul Gliserman
SG/cp
Palmer. let
B I-
(132.152 SE:
BOO 2882PC(0209 ButK i
[NOW ALL MN tY NESS PURISTS NAT 1,
N
_ Cfl V. Klai000
of 564 Malley Avelia, Nee Raved, Connecticut 6mpt8ytradmto4
is omuldentea of NO MILLION and 007100 ($2,000.60.00) 1201/461
gnat to Daniel M. Millie/.. Richard T. Sesttaed, Willis. Disease and
J.P. Wyse, Inc., co-partnere do.ng tains a. 21-31 Main Street
Associates vtth a principal office et 613 Orange Street. New Haas, CT
I'
with marrinig roormante
the land in Northampton, Hampshire County. Maseachaetre> being described in two (2)
parcels as follows:
PARCEL I
All that lot of land in Northampton, Hampshire County, Manacbaatte, whereon the
brick store orSullivanwarehouse formerly owned and occupied by John A. Sullivstood and
sms situated insaid Northmptoa. and bounded
SOUTIEKLY on Main Street
EASTERLY on land of the New Haven and Northam;non Coeaany, now leased to the New
York. New Haven and Hertford Railroad Company and
WESTERLY on a street or passageway between the m.t.te of John A. Sullivan and the
Clark Homestead. and
NORTHERLY on land of said New Hoven and Northampton Company. The said lot extends
one hundred and forty-four and one-half (144.10 feet, more or lees, In depth fro*
said Main Street.
TAls property is subject to an easement from Abraham R. Catodoy et nu. to the City
of Northampton, dated June 22, .943. and recorded is the Hampshire County Registry
of Deeds, Book 991, Page 462.
}i( Being the same prenbo described in deed of Pleasant Market, Inc. to pager V.
Ki rwaad, dated November 3, 1980, and recorded to the Hampshire County Registry ofDeeds, Book 2194, Page 119.
PARCEL It
Ht
That certain tract or parcel of lend with the buildings thereon, situated on the
tII Northwesterly side of Main Street, in Northampton. County of Hampshire, Commonwealth
of Massachusetts. containing seventy-five OS) square rods. more or less, and bounds
and described as follow.:
Rounded SOUTHEASTERLY about one hundred twenty-three (123) feet by said Main Street;
NORTHEASTERLY about two hundred one and one-half (2011) feet by it palmateway;
NORTHWESTERLY about eighty-aim (86) feet by a way leading from King Street to the
old freight house of the Nev Haven and Northampton Company: and SOUTNEBTTRLY about
one hundred ninety-nine and one-third (199-1/3) feet, in part by • driveway adjolnin
land now or formerly of 0. 0. Roberts and in part by land now or formerly of
.lohn T. Dewey.
Together with the benefit's and et jest to the burdens of it party wall agreement as
set forth in an instrument retarded in Hampshire County Registry of tends at Book
481. Page 13$, and also a suppl'=mental agreement recorded in said Registry at
Book 493, Page 184.
Being the same premises described in . deed from Nin Realty. Int. to Roger V. tired d
dated November 14, 1973 and recorded in said Kapshine County Registry of Stade at
Book 1659, Page 269.
The parcels above ate conveyed subject to real estate tales for fiscal year 1967
vhici, the grantor herein seem* and tire, to pay.
SUBJICT to en easement end right of way greeted to the inhabitants of the County of
Hampshire by instrument dated April S. 1983 and recorded to Hampshire County eaglet
of Deeds in gook 2143. Pigs 53 and the subsequent taking of 'Herrick Lanew by the
City of Northampton es set forth /a ea instrument rscorded is said Legistry in
look 2458. Page 333 and as shows in Pian look 127. Page 714
continued as neat page
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;f — r —T ----- tat 2882 PAM
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'OBJECT Y • eertpte Y naC.•rtrt fa theoriginal. prixipal mune of I -y
laB0,000 laced Ray 19, 19Bf. recorded L the Amoebic* Come] Ygtatq of Deeds ii Ga
Boot 2722, Pep 254.!MULC
f to • mortgage to Pioneer National Beet1. ln Y the original
principal amount of 0229.000 dated July 1. 1981, recorded L the papenln CPS ty
Ytlett7 of Deeds. Boca 2233. Pap 49.
SONSCT to • lease to Joatue'e, Inc. d/b/a Pitevllly. entice of said lea - -
tieing dated November 9, 1951, recorded 1a the lmstite County Registry of dada
Boot 2254, Pap 82.
SUBJECT to a UCC Financing Statement from Joshua's corpntioe to Citytrcet as
cured party, said statement dated Joao ❑. 1953, recorded in the Hampshire Co, ty
Registry of Deeds, look 2577, Page 124
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G gWEPIMe�f MPSSAClliS•E ' GOMMO,•J^ Ot MPSSPCtr
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COMMGtAWFPITH OT MASSACYUSrTTS ,1�
lll : CY , ti'A( L.; g990.00a
•g a -.F— DU" F,. =99 006 .. aa7..
Vila''
.vv01:vIEM.Th Or MASSACYUET
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Executed u t sealed increment this day . December
.• e If
1986
our V. Vlevood
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OballomEORRURVE d IBRHtEtha4[tt;
0upden et h , .. nk
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r,e7TM,Rmne11Y Unused am thou aMinedYu
Mined Roger V. rvooa i A• .. 0'
sem•
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and _ r1.
helm r 9d ledged the foregoing instrument lobe hie het enc uJ�ad, •. y.`.�/r
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Robert P. Cunningham ,.../, ' was,n,w
1-4._learn
Ml aommudoa*lin. September t8e 1089
ire th-4419eer 9 on ad4.Lmimrtn$M.Rdd.etd tad
,swim an)
with Hampshire Res d Deeds. mr .1901 v0gea
Attest fauna •
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,00E2950III cO28 005439 .
a
I, JONATHAN J. EINHORN .
of 412 Orange Strut, New Nevem, Connecticut 06511 Ite1RNe W1YfYMaN
u conddr ma* of NO MONETARY CONSIDERATIONS
pun b 21-31 MAIN STREET ASSOCIATES a 14aaalehusetta Canerat
Eartaa table
M 413 Orange Street, New Haven, Connecticut 06511 z
mHR quitclaim remnants y , Z
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FOR DESCRIPTION SEE mah 4
EXHIBIT "A" ATTACHED
HERETO AND MADE A 1 I
PART HEREOF
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QEt urw.Nd mammas 10th �y`I� IS 87.
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- ISTATE OF CONNECTICUT)
) •• Meet Hartford April 10 19 Si _
COUNTY or HARTFORD ) T
Inc. pmimlly mPnN rn, ,Mn na'S JONATHAN J. EINHORN • I
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t"a ..nw.Hapd �k m'.w."r mwrwn r.r hie�-` r w dna. 4.1
&fin"v.__11 (n r 'iL n $ ieLt-A^t. �.$
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. M 2950 121CO20
A certain tract of land with the buildings thereon, situated on )
1 the northwesterly side of Main Street in the City of Northampton.
i Hampshire County. Massachusetts, being described in two parcels as
shown on a plan entitled 'Land in Northampton, Massachusetts, 'T.
4 surveyed for 21-31 Main Street Associates' dated Pebivary 6. 1987,
• prepared by Almer Huntley, Jr. 4 Associates, Inc., and recorded in '
the Hampshire County Registry of Deeds in Plan Book /Yet , / •y1
jPage fa A being bounded end described as follows yk
' PARCEL I fj
s a2}
SOUTHEASTERLY by Main Street, an shown on said plan, a distance of
forty and No/100 (40.00) feet
1 NORTHEASTERLY by land now or formerly of the Massachusetts Electric
Company, as shown on said plan, a distance of one hundred
thirty-nine and 67/100 (139.67) feet;
NORTHWESTERLY by land now or formerly of Gail Clare Collins, as
shown on said plan, a distance of forty and NO/100 (40.001 feet; and y
SOUTHWESTERLY by Merrick Lane, as shown on said plan, a distance of -$
one hundredflorty-four and 90/100 (144.90) feet. y*
CONTAINING 5,673 square feet of land, more or leu.
PARCEL 11
1
SOUTHEASTERLY by Main Street, as shown on said plan, a distance of
one hundred twenty-three and 38/100 023.30 feet; (
NORTHEASTERLY by Merrick Lane, ae shown on said plan, a distance of •
•
i- - two hundred two and 46/100 (202.46) feet;
NORTHWESTERLY by Merrick Lane, as shown on said plan, a distance of ( •
eighty-three and 60/100 (83.60) feet; •
SOUTHWESTERLY by Bank Avenue, as shown on said plan. a distance of _..
ninety-seven and 64/100 (97.64) feet; and i
SOUTHWESTERLY by lest named land and along land now or formerly of
James O. Raymond et 41., as shown on said pian, a distance of ons III? -
. hundred two and 37/100 (102.37) feet.
CONTAINING 20,746 square feet of land, more or leu.
The above property is subject to the following;
. TOGETHER with the benefits and subject to the burdens of a party {
wall agreement as ret forth in an instrusent recorded in Hampshire 1{
•
, 1
1
t
e
i
it atm J50 ro�
County Registry of Deeds in Book 487, Page 125, end in Book 492, i i
Page 184.
SUBJECT to an easement and right of way granted to the inhabitants p V �' �
i of the County of Hampshire by instrument dated April 5, 1983, and i }t- ''
recorded In Hampshire County Registry of Deed* in Book 2342, PageI
�3
{ 53, and the subsequent taking of 'Merrick Lana' by the City of +ief a
Northampton as sat forth in instrument recorded at aforesaid in Book I
2458, Page 335, and as shown on Plan Book 127, Page 72. i \,
iSUBJECT to an easement from Abraham B. Colodny et us., to the City 1
of Northampton, dated June 22, 1945, and recorded as aforesaid in 1
Book 991, Page 482.
SonJECT to utility and drainage easements as shown on a plan
entitled "Land in Northampton, Massachusetts surveyed for 21-31 Main }
Street Associates" dated February 6, 1987, prepared by Alter pa
Huntley, Jr. 4 Associates, Inc. recorded herewith as set forth above. C!
SUBJECT to restrictions and encumbrances of record. .t
SUBJECT to real estate taxes for the fiscal year 1987, and 5
subsequent years which the grantee heiein assumes end agrees to pay. -
1 1 e
MEANING and INTENDING to convey all the property acquired from
DANIEL M. MIGLIORE ET ALS., d/b/a 21-31 MAIN STREET ASSOCIATES as ! e
sat forth in a deed recorded as aforesaid immediately prior hereto.
4,...1 ij I7 .. 2b . _ , H.- .. Al l
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