32A-138 (42) Barnes & Etheredge
LAW OFFICES, INC.
143 MAIN STREET
NORTHAMPTON. MASSACHUSETTS 01060
BENIAMW A.BANES 14131 584-0368 30 BRIDGE STREET
EDWARD D.ETHEREDGE FAX 14131585-5125 SHELBURNE FALLS,MA 01370
14131625-9888
Of Counsel
DONALD T.FILMIER
April 6, 1989
Mr. Bruce Palmer
Building Inspector
City of Northampton
212 Main Street APR 7
Northampton, MA 01060
Re: 21-31 Main Street/
Complaint of Nohominium Realty Trust '" --e
Dear Mr. Palmer:
I represent 21-31 Main Street Associates, the developer and
owner of a large portion of the 21-31 Main Street Condominium, as
well as the owners of abutting paved property. I have received a
copy of the Complaint filed by Nohominium Realty Trust and its
accompanying supporting letter from Attorney Gliserman. Please
consider this letter a response to the Complaint and Mr.
Gliserman's letter of 3-29-89.
Background:
On December 1, 1987, 21-31 Main Street Associates owned the
real estate in Northampton as it appears on a plan of land
recorded in Plan Book 151, Page 74, copy attached hereto, shown
as parcels 1, 2B and 2A. On December 31st, 1987, 21-31 Main
Street Associates submitted parcel 2A, consisting of a four-story
brick building and 14,103 square feet to M.G.L. 183A, our
condominium statute.
Nohominium Realty Trust owns units III, IV and V of the
Condominium, which consist of the Fitzwilly' s Restaurant and
Pop' s Package Store. 21-31 Main Street Associates owns units I,
II and VI in the Condominium and retains ownership of lots 1 and
2B, as shown on the above-mentioned plan.
An alter ego of Nohominium Realty Trust owns the
Fitzwilly' s Restaurant and Pop' s Package Store. In recent
months, 21-31 Main Street Associates and Nohominium Realty Trust,
along with the owners of the restaurant, have had protracted and
unproductive negotiations concerning the purchase by Nohominium
Realty Trust or some of the owners of the restaurant of the
condominium units and adjoining lots owned by 21-31 Main Street
Associates. Most recently, 21-31 Main Street Associates has
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Mr. Bruce Palmer NP'. 7iag April 6, 1989
Page Two
determined to rent the parking spaces on lots 1 and 2B.
Nohominium Realty Trust and the owners of the restaurant have
been unable to reach an agreement with 21-31 Main Street
Associates as to an acceptable rent for the parking spaces.
Consequently, 21-31 Main Street Associates has asserted its right
to close the private lots allowing parking only by those who pay
the monthly rental charge.
This Complaint is merely an attempt to gain leverage in
negotiations between sophisticated developers.
Facts as Set Forth in 3/29/89 Letter, Paragraphs 2, 3, 4, and 5:
21-31 Main Street Associates does not dispute the facts as
set forth in these paragraphs.
The Condominium is a conforming use on a conforming lot -
Paragraphs 6 and 7 of 3/29/89 letter:
The Zoning Ordinance of the City of Northampton ( Zoning
By-Law) sets forth minimum requirements for lots in the Central
Business Zone at page 6-4. For any permitted use other than a
mixed residential/business use, there are no required minimums as
to lot area, width, depth, front setback and side setback. The
rear setback is required to be 15 feet. A lot is defined in the
Zoning By-Law at page 2.10 as "an area or parcel of land .
designated on a plan filed at the Building Inspector by its owner
or owners as a separate lot and having boundaries identical with
those recorded in the Hampshire County Registry of Deeds." 21-31
Main Street Associates complied with the definition of a lot and
the required minimums when it recorded a plan and deeds
establishing lots 1, 2A and 2B as they appear in Plan Book 151,
Page 74. Each of those lots is a conforming lot under the Zoning
By-Law.
Attorney Gliserman suggests that the submission of lot 2A
and the building at 21-31 Main Street to the condominium statute
created a nonconforming use. This is not the case. The lot and
building meet the minimum requirements of the Zoning By-Law.
Rear Setback: required: 15 feet; actual: 25 feet.
Maximum Building Coverage: allowed: 80%; actual: 73%.
The footprint of the building is 10,318 feet.
The lot square footage is 14,103 feet.
10,318/14,103 = 73%.
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Mr. Bruce Palmer 1
�P !`may 1 April 6, 1989
Page Three
111.11DF BUILDING INSPECTIOtG
F.A.R. : The maximu .Lao•mll !+Ptca..n ono, . lowed in the Central
Business District is 2 .0. By-Law, page 6-4. The
computation to be made to determine the floor/area ratio
requires a determination of the floor area gross and the
division of that number by the total lot area. Zoning
By-Law, page 2 .7. The building was measured by Architects,
Inc. for submission to a condominium. The "floor area,
gross" is computed on the basis of the defined floor area of
each story in the building excluding the cellar. The
definition of gross floor area provides for certain
exclusions, including, but not limited to, cellars, and
floor space intended or designed for accessory heating,
ventilating and air conditioning equipment. Computing the
gross floor area according to the Zoning By-Law and dividing
it by the total lot area, the floor area ratio of the
building is approximately 1.75. This number is within the
permitted maximum of 2.0.
I believe that Mr. Gliserman' s concern comes from a
misconception on his part that the total square footage of
the building set forth in the condominium documents is
identical to the floor area, gross as defined in the
Northampton Zoning By-Law.
Parking - Paragraphs 8 through 13 of 3/29/89 Letter :
Section 8. 1 of the Zoning By-Law provides that for
pre-existing buildings in the Central Business District "no
additional off-street parking is required for the continued use
or re-use of existing buildings, as long as that use or re-use
does not increase the total floor area within the building. "
21-31 Main Street is a pre-existing building. The use
has continued as retail and business use from a time predating
the Zoning By-Law until the present. There is no obligation on
such a building or such a use to provide any parking whatsoever.
A condominium is a form of real estate ownership, not a form
of use. Barclay v. DeVeau, 384 Mass. 676, 682 (1981) .
Conversion to a condominium is a change in ownership, not a
change in use. C.H.R. General, Inc. v. Newton, 387 Mass. 351,
356-57 ( 1982 ) ; Fitzsimonds v. Board of Appeals of Chatham, 21
Mass. App. Ct. 53, 1985.
The building at 21-31 Main Street is under no burden to
provide parking as a pre-existing conforming use. The conversion
to condominium imposes no obligation to provide parking under
Massachusetts law.
0oM �Mr. Bruce Palmer April 6 , 1989
Page Four APR 7 IR,
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Section 8 .3 - Existing Spaces u
The Complainant contends that Section 8 .3 of the Zoning
By-Law denies the owners of lots 1 and 2B the right to close
their private property to automobiles. Section 8.3 must be read
in the context of the entire Article 8. It speaks only of spaces
"being maintained . . . in connection with any existing use on the
effective date" of the Zoning By-Law. The spaces on lots 2B and
lot 1 are not being maintained in connection with any existing
use on the date of the adoption of the By-Law. "Maintained in
connection" in an ordinance implies a requirement that the spaces
be provided. The Northampton Zoning By-Law as clearly set forth
in Section 8.1 does not require parking spaces to be provided by
any pre-existing building in the Central Business District. The
Complainant's reading of 8.7 is similarly off base. Section 8.7
governs the location of "required off-street parking spaces" .
There are no "required off-street parking spaces" in connection
with the use of the building at 21-31 Main Street.
Commercial Parking Lot
Commercial parking lots are allowed by right in the Central
Business District. Principal use #20, page 5-11. A use may be
commercial in character whether or not profit is derived from the
venture. Sullivan v. Saugus, 305 Mass. 127 , 130 (1940) . It is
undisputed here that from the original passage of this By-Law to
the present the paved areas owned by 21-31 Main Street Associates
and its predecessors in title have been available for parking.
The extent and nature of the supervision and control of the
parking has varied to a considerable degree over the years. It
may be presumed that members of the general public with business
in the vicinity of the lot have found it convenient to park on
the property. The availability of parking may have enhanced the
office space and retail space of 21-31 Main Street. The parking
was clearly commercial in character, whether or not the owners
were charging fees. Now the owners have closed the lot and
intend to reopen the lot charging fees. The mere charging of
fees will not change the prior commercial use. There is no
violation of Section 9. 2 of the Zoning By-Law.
Architectural Barriers Board 521CMR, §23 .1, et seq. :
The Complainant contends that the owners of the parking lot
have an obligation to provide handicap access parking. Section
23.1 provides "any person who has lawful control of improved or
enclosed private parking, used as an off-street parking area for
businesses, auditoriums, sporting or recreational facilities, or
cultural centers , where the public has the right of access as
Mr. Bruce Palmer
Page Five April 6, 1989
i 1'*0� )" l
U __ __ J'
DEPT.OF BUIL NG:^,SPECC!ONS
NORMAMPTON,
invitees or licensees, s ng areas to conform
to these Regulations if the parking area has fifteen (15 ) or more
parking spaces. " The owners have lawful control of private
property. The property, however, is not currently being used as
"an off-street parking area for businesses" . Up until this
point, the public has had a right of access as invitees or
licensees . At the current time, the lots are open to "permitted"
parking. These lots are not providing off-street parking for
particular businesses. They are not, therefore, within the
Architectural Barriers Board's Section 23 .
Zoning Permit - Article X, Section 10.2:
21-31 Main Street maintains there is no change in the use of
the lot. The lot has been a commercial parking lot. It will not
change in character simply because fees are charged. Because the
use is pre-existing and conforming, Section 10.11, Site Plan
Review, is inapplicable.
Conclusion:
21-31 Main Street Associates assert that the lots they have
created are conforming lots under the Zoning By-Law. The
Condominium they have created is a valid condominium and a
conforming use under all aspects of the Northampton Zoning By-Law.
It further asserts that the establishment of a permit process and
the enforcement of the process is not the creation of a new use,
but rather the continuation of a prior conforming use, that of a
commercial parking lot.
If I can be of any further assistance, please feel free to
call.
Very truly yours,/
Benj min arr�lhs
BAB/and
enc.
cc: Saul Gliserman, Esq.
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