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Opposition Memo 8.3.211 GML GREEN MILES LIPTON, LLP ATTORNEYS AT LAW JOHN J. GREEN, JR. 77 PLEASANT STREET HARRY L. MILES P.O. BOX 210 ROGER P. LIPTON NORTHAMPTON, MA 01061-0210 JOHN M. MCLAUGHLIN* PHONE (413) 586-8218 *ALSO ADMITTED IN CONNECTICUT FAX (413) 584-6278 MICHAEL PILL (Main Office) BRAD A. SHIMEL SUSAN L. MILES WESTFIELD OFFICE: DAVID C. KUZMESKI, OF COUNSEL 48 EAST SILVER STREET, SUITE 5 RAYMOND W. ZENKERT, JR., OF COUNSEL*** WESTFIELD, MA 01085 *** ALSO ADMITTED IN OHIO & MICHIGAN PHONE (413) 642-8367 FAX (413) 579-5357 BRIAN L. BLACKBURN (Dec.) www.greenmiles.com August 3, 2021 Central Business Architecture Committee City Hall, 210 Main St., Room 11, Northampton, MA 01060 Re: Application for Demolition of Former St. John Cantius Church, Hawley Street, Northampton Opposition to Demolition of St. John Cantius Church Building I. Introductory Statements/Objection I am John M. Mclaughlin of the Northampton law firm Green Miles Lipton, LLP, representing Northampton residents Ms. Deborah Henson and Mr. John Dunne (“clients”). On June 6, 2021, O’Connell Hawley LLC (the “Developer/Applicant”) filed an application with the Central Business Architecture Committee (“Committee”) to demolish the former St. John Cantius church building on Hawley Street in Northampton. For the reasons set forth below, we vehemently object to demolition of St. John Cantius. It is an historic, architecturally valuable building; pursuant to Northampton city ordinances it is both an “Historic Building” (constructed before 1945) and an “Historic Landmark Building” (the “Historic Landmark Building”). Many Northampton residents support my clients in their opposition to destruction of this Historic Landmark Building. II. The Pertinent Law While demolition of buildings is normally governed by state law, implemented by the City Building Commissioner, the City of Northampton has ordinances concerning demolition of buildings in Northampton. Chapter 161 (“Demolition”). City Ordinance § 161-3 (C) provides, in part, “Applications for demolition within the Central Business Architecture District will be reviewed by the Central Business Architecture Committee (created by Chapter 156 of the Code).” The Historic Landmark Building is located in the Central Business Architecture District. Therefore, your Committee has jurisdiction in reference to the proposed demolition. 2 Chapter 156 of the City Ordinances pertains to your Committee (The CBAC ordinance provisions). Specifically, City Ordinance § 156-6 provides, in part: Except for activities exempted above, no building or structure within the Central Business Architecture District shall be constructed, altered, or demolished in any way without a central business architecture permit from the Central Business Architecture Committee issued in accordance with this chapter, nor, without such a permit, shall such activities be issued a building permit or demolition permit. (See also MGL c. 143, § 3A.) (Emphasis added) City Ordinance § 156-6 (D) (2) (a) provides: “Any element of the project or the project in its entirety shall be presumed to meet the standards necessary for approval if the Committee finds that it meets the Applicability and Design Guidelines sections in the Design Guidelines Manual” (Emphasis added). The manual defines Historic “Landmark Buildings” as buildings that: “ … are architecturally distinctive, usually free-standing buildings, with significant property setbacks and landscaped spaces on one or more sides. Often, they display distinctive, visible roofs or roof features. They were frequently built (and are still often used for( [sic] civic, religious, or cultural purposes. This category also includes some high quality historic residential buildings.” This Historic Landmark Building was built in the early 20th century. The Developer/Applicant does not dispute that it is both an Historic Building (built before 1945) and an Historic Landmark Building. The manual also contains a specific provision pertaining to demolition of historic buildings in the district. That provision provides: Demolition of Historic Buildings (space after heading) Demolition of historic buildings (those built prior to 1945) should be considered only after all reasonable alternatives--especially rehabilitation-- have been fully considered. For historic landmark or theme buildings, demolition should be considered only when the building is unusable or is functionally and structurally obsolete, and when an appropriate new building has been designed to replace it. Demolition of historic transitional residential or historic anomaly buildings should be considered only when the building is unusable or is functionally and structurally obsolete, and when an appropriate new building has been designed to replace it; however, an approved new theme building may replace a transitional residential building regardless of its condition. (Emphasis added) City Ordinance § 156-6 (B) provides: The Committee shall use the same public notice and time line requirements for permit applications as are required under the State Zoning Act (MGL c. 40A) for special permits and time lines for exercising permits as specified in Chapter 350, Zoning, § 350-4.7. The State Zoning Act, G.L. c. 40A § 16, “Final unfavorable decisions by permit granting authorities; reconsideration; withdrawal of petitions for variance or applications for special permit”, imposes the following time constraints after a denial of an application: 3 No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time and place of the proceedings when the question of such consent will be considered (Emphasis added) City Ordinance § 156-6 (D)(3) provides: If the Committee finds that owing to conditions especially affecting the building or structures involved, but not affecting the district generally, failure to approve an application will involve a substantial hardship, financial or otherwise, to the applicant and whether such application may be approved without substantial detriment to the public welfare and without substantial derogation from the intent and purposes of this chapter, it shall issue an central business architecture permit. (Emphasis added) III. What This Committee Must Decide To issue a demolition permit for the Historic Landmark Building this Committee must decide if the following “Demolition Criteria” have been satisfied: 1. All reasonable alternative utilizations for the Historic Landmark Building have been considered. AND 2. The Historic Landmark Building is unusable. OR 3. The Historic Landmark Building is functionally obsolete AND structurally obsolete. AND 4. The Historic Landmark Building is being replaced by buildings appropriately designed for the Downtown Business District. Additionally, before this Committee even considers the merits of the pending application, you must decide whether the application is properly before you, in light of the fact that this Committee correctly denied the same application on April 6, 2021. IV. “Substantial Financial Hardship” requirement has not been met. If this Committee was to decide on the demolition permit by simply looking at the plain language of the Demolition Criteria (See “Law” section above) and putting all claims of “financial hardship” aside, the permit should not be granted. 4 1. Not all reasonable alternative uses have been fully considered. The Developer/Applicant has not proposed any reasonable alternatives for using the Historic Landmark Building that include other land historically associated with the Building. The St. John Cantius church property contained: (a) the church; (b) a rectory, which was itself an Historic Building in this district, constructed in 1916; (c) a community building; (d) parking areas adjacent to those buildings; and (e) parking areas located across the street from the church on Phillips Place. The alternative uses considered to date only utilize little more than the land directly around and under the Historic Landmark Building. 2. While the Historic Landmark Building is not currently in active use, both the Developer/Applicant and those in opposition to the demolition have shown that there are other uses that for the building. It is clearly “usable.” 3. While the building is not currently being used as a house of worship, it is not functionally obsolete. Both the both the Developer/Applicant and those in opposing demolition have shown that there are commercial and residential uses for the building. 4. While there has been some deferred maintenance problems, it is not structurally obsolete. It can be repaired. Both the Developer/ Applicant and those opposing demolition have submitted plans that show how the building could be adapted to multiple different proposed uses. 5. As in the prior failed application for demolition of the Historic Landmark Building (see below), the Developer/Applicant proposes to replace the building with new structures designed to be purely residential. To the best of my knowledge, the ordinances for the Downtown Business District require commercial use for at least the first 20 feet in depth of the first floor. The proposed replacement structures violate the city’s ordinances and therefore cannot be built. Yet, the Developer/Applicant, while not explicitly referencing City Ordinance § 156-6 (D)(3), nonetheless, wants this Committee to approve its proposed demolition the Historic Landmark Building based on a substantial hardship argument; the gist of the argument is that: a. This Committee must consider the substantial financial hardship pertaining to only the four walls and roof of the Historic Landmark Building. The multiple millions of dollars being made from developing land associated with the Historic Landmark Building should not be considered; b. None of the other land historically associated with the Historic Landmark Building can be considered for any potential future use of the Building (e.g. parking across the street); 5 c. With this segmented misleading analysis, the Developer/Applicant contends it would be difficult for the Developer/Applicant to make significant amount of money (or possibly even lose some money) repairing the Historic Landmark Building and using it for a different purpose; and d. Therefore, based upon this inaccurate economic viability/financial hardship analysis, the Developer/Applicant wants your approval to demolish the Historic Landmark Building. The Developer/Applicant’s substantial financial hardship argument ignores many important facts: a. In March 2020 the Developer/Applicant Purchased the Historic Landmark Building as part of larger acquisition where the Developer/Applicant and a related jointly controlled company, O’Connell Hawley II LLC (the “Related Developer”), obtained the land and other buildings historically associated with the Historic Landmark Building. b. The Developer/Applicant and the Related Developer purchased the Historic Landmark Building and its rectory (constructed in 1916), knowing that city ordinances restrict demolition of historic buildings (the church and the rectory) and historic landmark buildings. c. In December 2019 the Developer/Applicant, as a contract-purchaser, applied for permit from this Committee to demolish the rectory and the community building. In its written presentation for that application the Developer/Applicant said “None of the buildings on the site are included in the Historic Register or are restricted in terms of demolition, however the church is a notable structure in the neighborhood and the goal is to find a way to eventually redevelop it.” (Emphasis added). See Exhibit A attached. d. The statement quoted above is not true. The rectory was constructed in 1916; it was an historic building in your district. Your manual provides “Demolition of historic buildings (those built prior to 1945) should be considered only after all reasonable alternatives--especially rehabilitation-- have been fully considered” (Emphasis added). e. Unfortunately, from the records available to me, it does not appear the Developer/Applicant presented any reasonable alternatives and/or the possible rehabilitation alternatives for the rectory building. The Committee granted approval for the demolition of the rectory building. f. In November 2020 the Developer/Applicant created an ANR (Approval Not Required under the subdivision control law) plan whereby the Historic Landmark Building is left with hardly any of the land historically associated with the building. There is no parking area at all. Even some of the sidewalks are excluded. See Exhibit B. 6 g. After receiving zoning relief, the Developer/Applicant is creating a massive new development which should generate millions of dollars in profit, using the land historically associated with the Historic Landmark Building. The variance/hardship language of City Ordinance § 156-6 (D)(3) is very similar to: (a) the Massachusetts statute for zoning variances, G.L. c. 40A § 10; and (b) the Massachusetts statute for economic hardship variances pursuant to the Historic District statutes, G.L. c. 40C § 10(c). Cases construing these statutes provide persuasive authority for construing City Ordinance § 156-6 (D)(3). To qualify for an economic hardship variance pursuant to the Historic District hardship variance statute, G.L. c. 40C § 10(c), it is not enough for an applicant to simply show that it will cost the applicant more money to abide by the historic protection provisions; abiding by historical preservation statutes in order to protect historic properties may indeed cost the applicant more money. See Federated Church v. Historic Dist. Com’n, Town of Edgartown, 1995 WL(WestLaw online data base) 1146196 (Superior Court, 1995). In the Federated Church case a church argued that it should receive a financial hardship variance from the historic district’s mandate to use wooden clapboards because the clapboards were more expensive than the vinyl siding the church wished to use. The district did not find this argument compelled a financial hardship variance and the court agreed. This committee should also consider that a zoning variance pursuant to G.L. c. 40A § 10, cannot be based upon a self-created hardship. See Raia v. Board of Appeals of North Reading, 4 Mass.App.Ct. 318, 347 N.E.2d 694 (1976) (decided under prior version of statute). Your substantial economic hardship provision, City Ordinance § 156-6 (D)(3) provides that the subject analysis can be for more than one single building, “building or structures.” In light of the fact that there were two structures on the church property (the church and the rectory) which would have required detailed analysis from this Committee, the Developer/Applicant should have come forward with an application with reference to both structures; or, at a minimum, the profits being made from the rectory land must be considered when analyzing the church. Pursuant to City Ordinance § 156-6 (D)(3), a financial hardship variance cannot be granted unless it can be approved “without substantial detriment to the public welfare and without substantial derogation from the intent and purposes of this chapter” (Emphasis added). The Committee has a clear statutory duty of “preserving historic and architecturally valuable buildings” (See § 156-1). Based upon the facts in this case and the pertinent law, the Developer/Applicant is not entitled to a financial hardship variance. The Developer/Applicant is intentionally segmenting the development of land associated with the Historic Landmark Building and has even made misstatements to this Committee in an attempt to 7 avoid its legal obligations to protect the Historic Landmark Building. Its alleged financial hardship is largely self-created and its actions to date are, at best, questionable. To grant this particular applicant substantial financial hardship relief would not be in conformity with the law. It is simply not reasonable for this Developer/Applicant to claim “economic hardship” when it stands to make multiple millions of dollars from the church land, especially since the Developer/Applicant was somehow allowed to demolish the church rectory without ever properly setting forth the grounds for that demolition. This committee should deny the application based on the plain language of the manual. If the Committee decides to go beyond the plain language of the manual and consider some type of financial viability argument with reference to the Demolition Criteria, then: (a) the millions of dollars of profits being made on land historically associated with the Historic Landmark Building must be considered; and (b) when considering reasonable alternative uses for the Historic Landmark Building the Committee can and should consider land historically associated with the church. If you accept the financial hardship argument presented by this Developer/Applicant, you will set a precedent that will invite other similar applications to demolish Historic Landmark Buildings in our city. For example, if this application for demolition is allowed based upon the economic viability argument/financial hardship arguments made by this Developer/Applicant, a future developer (or maybe even the same developer) could come before this Committee to demolish the St. Mary’s church. That developer could segment the St. Mary’s property and intensively develop all of the land historically used for parking and the rectory for St. Mary’s church for a very large profit and then argue that there is no viable economic use for the St. Mary’s church building because it lacks parking and because use of the church building, in isolation, is not profitable. This Committee should not allow this type of project segmentation. That is not how the city’s provisions to protect Historic Landmark Buildings are meant to be implemented by this Committee. V. Grounds for the Objection Based on the language of the manual and city ordinances, this Committee cannot issue a permit for the demolition of the Historic Landmark Building for a variety of reasons, including: 1. All reasonable alternative uses for the Historic Landmark Building have not been considered. Future uses for the building must include using historical church land beyond the land included in the recent ANR plan. 2. The Historic Landmark Building is “usable” even though it is not currently in active use. The Developer/Applicant and those opposed to the demolition have all proposed uses for the building. 8 Any maintenance deficiencies can be readily repaired and the cost of sealing the building from the weather for the time being is only a fraction of the amount claimed by the Developer/Applicant. 3. The Historic Landmark Building is not structurally obsolete. The physical condition of the building can be restored to current safety standards. If this Committee considers economic viability arguments on this point, you must also consider: (a) the total profit the Developer/Applicant will ultimately make on the entire project including the land historically associated with the Historic Landmark Building; (b) future uses which include using historical church land beyond the land included in the recent ANR plan; and (c) the inaccurate calculations given by the Developer/Applicant for its economic viability argument, which itself is flawed in that it does not take into account 3 (a) and 3(b), set forth above. 4. The Historic Landmark Building is not functionally obsolete. There are multiple future uses of the building which would be economically viable when, as set forth above, (a) millions of dollars of profits being made on land historically associated with the Historic Landmark Building are considered; and (b) when considering reasonable alternative uses for the Historic Landmark Building the Committee can and should consider land historically associated with the church. 5. Also, the inaccurate calculations given by the Developer/Applicant for its economic viability argument are already flawed in that they do not take into account 4 (a) and 4(b), set forth above. 6. The proposed replacement buildings are not “appropriate” because they do not include the commercial element normally mandated by City Ordinances in the Central Business District VI. All reasonable alternative utilizations for the Historic Landmark Building have not been fully considered. While multiple, alternative uses for the Historic Landmark Building have been considered, not all reasonable alternatives have been considered. Most significantly, alternative uses for the Historic Landmark Building which include using historical church land beyond the land included in the recent ANR plan have not been considered. The Committee should at least consider land beyond the ANR plan created by the Developer/Applicant. That plan did not even give the Historic Landmark Building the entire sidewalk around the building. This concocted lack of land for the Historic Landmark Building should not prevent this Committee from at requiring alternative uses where the Historic Landmark Building is able to utilize more land. Such uses could affect the Developer/Applicant’s claims of economic detriment. The currently vacant property on Phillips Place, across the street from the Historic Landmark Building, historically was the parking lot for St. John Cantius Church. This Committee should demand 9 that the Developer/Applicant submit alternative utilizations using that property along with the Historic Landmark Building. My clients understand that the area in question is owned by O’Connell Hawley II LLC (the “related developer”). The Developer/Applicant and the related developer are simply shell companies both controlled by the same entity and/or individuals. Printouts from the Secretary of State showing the interrelationship of the two entities are attached hereto as Exhibit C. By submitting plans for such reasonable alternatives the Developer/Applicant would not be bound to implement such uses. Nonetheless, such alternative uses must be at least submitted and considered before this Committee can even consider issuing a permit allowing for demolition of the Historic Landmark Building. VII. The Historic Landmark Building is usable The Historic Landmark Building is usable. The Developer/Applicant and those in opposition have set forth a variety of possible uses for the Historic Landmark Building. My clients understand that some significant amount of money will be required to improve the Historic Landmark Building for new use. However, any current maintenance problems with reference to the Historic Landmark Building do not mean it is not “usable.” If the Committee decides to consider economic viability factors when considering whether the Historic Landmark Building is “usable” then you should require the Developer/Applicant to provide considerably more information and alternative plans. The Developer/Applicant should disclose: 1. What amount profit it intends to make on the entire project which utilizes the land historically associated with the Historic Landmark Building (see argument above). 2. What kind of income could be generated through various alternative uses for the Historic Landmark Building while using land from across the street (see argument above). Without taking these factors into account the Committee cannot evaluate the economic viability contentions with reference to the “usability” of the Historic Landmark Building. The numbers utilized by the Developer/Applicant in its economic viability arguments are inherently flawed for the reasons referenced above. Additionally, my clients do not agree with the numbers in the Developer/Applicant’s flawed economic viability argument. Attached as Exhibit D is my clients’ detailed cost analysis with reference to utilizing the Historic Landmark Building for residential purposes. My clients’ analysis shows that even using the Developer/Applicant’s flawed economic viability parameters (no parking for the building and not considering profits from the entire project) the future use of the Historic Landmark Building for residential use is still economically viable. Further reports 10 and/or testimony from my clients’ supporters including the architect, Mr. Tris, Metcalfe and a developmental consultant, Mr. Bill Kraus, will support this position. Additionally, clients’ supporters will speak to the issue of tax credits. Despite the Developer/Applicant’s statements to the contrary, with proper applications and with proper actions taken, re-use of the Historic Landmark Building could qualify for tax credits. Essentially, my clients’ experts contend that the numbers submitted by the Developer/Applicant are not accurate. The most glaring inaccuracy is the Developer/Applicant’s contention that to simply secure the building against inclement weather would cost over $1 million. This is clearly wrong. While it may cost some significant amount of money to repair the exterior of the building for a new use, it would not cost anywhere near that amount to simply secure the building against inclement weather. The Developer/Applicant does not have to put on an entire new roof or re-point all of the bricks on the entire building to secure the building from inclement weather. All that needs to be done, for now, is to repair specific areas of the roof that are leaking and the specific areas of the walls where water may have been coming in. For a fraction of the cost claimed by the Developer/Applicant the Historic Landmark Building would then be secure. This Committee could reconsider an application for demolition in the future if all of the proper criteria are satisfied. Once an alternative use for the Historic Landmark Building is decided upon and approved, the Developer/Applicant could then do the more extensive exterior repairs. VIII. The Historic Landmark Building is not functionally obsolete and structurally obsolete All of the statements, arguments, and exhibits referenced above in Sections VI and VII are incorporated herein. When one considers a reasonable economic viability/financial hardship analysis, the Historic Landmark Building is not functionally or structurally obsolete. The Developer/Applicant stands to make multiple millions of dollars in profit from the church land even if some amount of money is lost on the utilization of the church building itself. This is hardly an economic hardship. Additionally, if some amount of the church land is used with the future utilization of the Historic Landmark Building the future utilization will clearly be more economically viable. Finally, as referenced above, even if we use the Developer/Applicant’s flawed economic viability/financial hardship analysis my clients’ numbers show that the Historic Landmark Building is still not functionally and structurally obsolete. The committee should note that the Developer/Applicant’s contentions pertaining the economic viability with reference to structural obsolescence and functional obsolescence are essentially the same. Yet, these are two entirely different factors. The manual states that this committee must find that the Historic Landmark Building is BOTH functionally obsolete and structurally obsolete before you issue a 11 permit to demolish the building. Because these two factors are separately listed you should not conflate the two factors into one factor. At the last committee hearing pertaining to a prior application for the demolition of the Historic Landmark Building a committee member said: “…Really, the only thing that we are charged to decide tonight is whether the developer has shown us that the building is functionally obsolete and not practical to use. That’s really the only thing that’s in front of us to decide.” This is not an accurate statement. Based upon the manual there are two separate and distinct questions for the committee: (a) Can the function of the Historic Landmark Building not be changed such that it is functionally obsolete? AND (b) Is the structure of the building so bad that it cannot be feasibly repaired and it is structurally obsolete? The ordinances clearly shows these as two separate and distinct questions. Also, by specifically delineating structural obsolescence as a separate, additional, mandatory factor is clear that the ordinances requires the structure of building in question to be in an irreparably horrible condition before there can be a demolition approved. While functional obsolescence is more susceptible to economic viability considerations, structural obsolescence requires a different analysis. Please understand that for a building to be structurally obsolete it must be in such a bad state that it has gotten to the point where it could not be feasibly refurbished to current safety standards. The Historic Landmark Building may have some current maintenance deficiencies but it is certainly not structurally obsolete. See also Pittsfield church repurposing developer David Carver’s letter of August 2, 2021, to your committee which is attached hereto as Exhibit D, discussing the building structure of Catholic churches of this era. This is a developer who has actually saved and redeveloped old churches in this area. He would appear to have far more expertise in such matters than anyone who is making claims on behalf of the Developer/Applicant. Perhaps the Committee should request access to the building such that they can make observations to determine if the building’s structure is beyond hope. My clients and their experts are quite certain the building is not structurally obsolete. While my clients contend that the Historic Landmark Building is neither functionally obsolete more structurally obsolete, it should be clear that the Developer/Applicant has not submitted sufficient evidence to prove that the Historic Landmark Building is structurally obsolete. To obtain the demolition 12 permit the Developer/Applicant must prove BOTH of these elements; therefore, the application must be denied. IX. An appropriate new building has not been designed to replace the Historic Landmark Building According to the written decision, the Developer/Applicant’s prior application for demolition of the Historic Landmark Building was denied precisely because the new buildings proposed to take the place of the Historic Landmark Building were not appropriate. The committee correctly took note of the fact that the proposed new buildings were not designed to have commercial use on the first floor. The new buildings were therefore not “appropriate” because they clearly violated the existing ordinance requirements for the Central Business district. The situation remains exactly the same today. The new buildings proposed to take the place of the Historic Landmark Building are clearly designed to be nothing more than high-end condominium units for rich people only. These proposed replacement buildings: 1. front on the streets located in the Central Business District; 2. have residential uses on the first floor; and 3. Are clearly not designed to have commercial uses in the first 20 feet of the first floor. In fact, in the narrative with this application the Developer/Applicant says, with reference to the design of the five (5) high end luxury townhomes “This solution is compatible in scale and density with the residential neighborhood and offers a similar relationship between the car and dwelling unit as the buildings currently under construction, yet maintains its own character and architectural expression.” (Emphasis added), but this is not a residential neighborhood. It is a commercial neighborhood which mandates commercial use on the first floors of the building at least for up to 20 feet in depth. The existing ordinance “use requirements” in the Central Business District still clearly do not allow the buildings proposed by the Developer/Applicant. The ordinance provides that residential use is allowed in the Central Business District for residential use: 1. Above the first floor, 2. Located to the rear of otherwise permitted nonresidential uses that occupy a space at least 20 feet deep; and 3. On a property which does not abut on a public way or public park (however, not classifying rail trails as public parks) maintained by the City. The ordinance also states that “Home businesses are considered residential uses for these purposes.” That means homeowners cannot claim that they are going to operate home business in the first 13 20 feet of the first floor. Home business is residential use that cannot be used to make a claim of commercial use on the first floor. It also does not appear that there is any actual proposed ordinance amendment to allow for first floor residential use in the Central Business district currently before the City Council. In the past the Northampton Planning officials have stated that such a change would be part of their form-based ordinance amendment. Those proposed amendments do not appear to be currently before the City Council and it could be months before they are even brought to City Council. The Developer/Applicant’s eagerness to demolish the Historic Landmark Building is the apparent reason for the current flawed application. The proposed replacement buildings for the Historic Landmark Building are not “appropriate” replacements because they are designed for what is currently an illegal use. For this reason alone, the application must be denied, as it was last time. X. The Denial of a Prior Application As referenced above, this Committee denied an earlier application of the Developer/Applicant to demolish the Historic Landmark Building. That decision was made on April 6, 2021. The Developer/Applicant filed an appeal from that decision with the Planning Board on May 7, 2021. I am now told by the planning department that the appeal has been withdrawn although the paperwork may not yet be available online. That means that your correct and justified denial of the demolition permit from April is now final. In April the Developer/Applicant did not ask to withdraw its application without prejudice; the Committee denied the application. City Ordinance § 156-6 (B) provides: The Committee shall use the same public notice and time line requirements for permit applications as are required under the State Zoning Act (MGL c. 40A) for special permits and time lines for exercising permits as specified in Chapter 350, Zoning, § 350-4.7. G.L. c. 40A § 16, entitled “Final unfavorable decisions by permit granting authorities; reconsideration; withdrawal of petitions for variance or applications for special permit,” is a provision of the State Zoning Act as to time constraints for Special Permits after a denial of an application for the same relief. It states in pertinent part: No appeal, application or petition which has been unfavorably and finally acted upon by the special permit granting or permit granting authority shall be acted favorably upon within two years after the date of final unfavorable action unless said special permit granting authority or permit granting authority finds, by a unanimous vote of a board of three members or by a vote of four members of a board of five members or two-thirds vote of a board of more than five members, specific and material changes in the conditions upon which the previous unfavorable action was based, and describes such changes in the record of its proceedings, and unless all but one of the members of the planning board consents thereto and after notice is given to parties in interest of the time 14 and place of the proceedings when the question of such consent will be considered (Emphasis added) City Ordinance § 156-6 (B) states that the Committee should use the time line requirements for applications for special permits found in the State Zoning Act. Under G.L. c. 40A § 16 it is very difficult to reapply within two years of a denial without undertaking other significant procedures. The Developer/Applicant has clearly had a denial within two years of this application. Indeed, aside from the provisions referenced above, City Ordinance chapter 156, does not allow an applicant who was denied a permit to come back before the Committee seeking the same relief. Indeed, in this case the basis for the prior denial still appears to be totally valid. While the Committee may have contemplated that the Developer/Applicant would return with the new application after the ordinances had changed in the central business district, that has yet to happen. Even without referencing G.L. c. 40A § 16, there appears to be no justification for the Developer/Applicant to return with this new application at this time. XI. The Developer/Applicant’s italicized language The Committee should focus on certain words that have been italicized in the presentation made by the Developer/Applicant. In its presentation the Developer/Applicant said: Chapter 161. Demolition §161-3: Buildings and structures regulated by this chapter. Buildings or structures located within Local Historic Districts are subject to the provisions of Massachusetts General Laws Chapter 40C. Applications for demolition in such districts will be reviewed as part of the Historic District permitting process. Applications for demolition within the Central Business Architecture District will be reviewed by the Central Business Architecture Committee (created by Chapter 156 of the Code) (emphasis added). If any of the above- mentioned should cease to exist, the Northampton Historical Commission would administer this chapter in those areas. The Historical Commission will review demolition applications in all other areas of the City. The italicizations of these words could mean that the Developer/Applicant believes your Committee can “review the application” but does not have the power deny the permit, or if you do deny the permit, the Developer/Applicant can nonetheless proceed with demolition. Such a reading of §161-3 is totally inconsistent with City Ordinance § 156-6 (see above) which provides, in part: Except for activities exempted above, no building or structure within the Central Business Architecture District shall be constructed, altered, or demolished in any way without a central business architecture permit from the Central Business Architecture Committee issued in accordance with this chapter, nor, without such a permit, shall such activities be issued a building permit or demolition permit. (See also MGL c. 143, § 3A.) (Emphasis added)