Loading...
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 } tt { F: e ... _. .,.iia f..1. 470....„ f <w 47i# i1 fc 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%. e n E. 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, k,' , �.. '.5 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. R