Watling Letter to ZBA 2023-08-18 Continuation Request1
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 CONNECTICUTFAX (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 BRIAN L. BLACKBURN (Dec.) FAX (413) 579-5357 www.greenmiles.com
August 18, 2023 Northampton Zoning Board of Appeals 210 Main Street, Rm 11 City Hall Northampton, MA 01060
RE: Matter: Appeal of decision by the Building Commissioner regarding structure at 129
Riverbank Rd, Northampton, Map ID-25-26.
Scheduled hearing: Thursday, August 24, 2023, at 5:30 PM.
Third Request for Continuance of Scheduled Hearing Date and Written Waiver of Rights
I. Request for Continuance
As you may recall, I represent Richard Watling ("client") who owns and resides at 129
Riverbank Road. On June 24, 2022, pursuant to M.G.L.A. 40A § 8 and §15, I filed an appeal of the
Northampton Building Commissioner's May 26, 2022 Order mandating the removal of the partially
constructed garage structure located at the rear of my client's property (the “teardown order”). The next
hearing on the teardown order is scheduled for August 24, 2023. For the reasons set forth herein I am
requesting a postponement of that hearing until December 21, 2023.
One of the principal grounds for my appeal is that this Board should never approve the
destruction of a new building where there is a chance that there is zoning relief that could allow for the
new construction. An order to tear down a structure should be a last resort and should be issued only
when there is no possibility of zoning relief that could legalize the structure. See Sheppard v. Zoning Bd.
of Appeal of Boston, 81 Mass.App.Ct. 394 at 407 (2012).
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I am now happy to report that we have entered into a purchase and sale agreement with the new
owner of 117 Riverbank Road to purchase approximately 1568 ft.² of that property which is adjacent to
my client’s property. We have filed for a special permit seeking relief which is almost identical to the
relief granted by this Board in 2021. There is now a very good possibility of obtaining zoning relief
that can legalize the structure. I am asking for time to obtain the zoning relief and the related
Conservation Commission relief before this Board acts substantively on the teardown order.
II. Procedural History
If you recall, this Board has graciously postponed hearings on the teardown order while we
endeavored to enable my client to purchase approximately 1568 ft.² of land (the “subject property”)
from the 117 Riverbank Road property which is adjacent to my client’s property. With the subject
property my client could then proceed with the special permit application pursuant to § 350-9.3. (A)(10).
The special permit being sought would be nearly identical to the application this Board granted my
client in 2021.
At first, this Board granted my client needed time to negotiate with the new owner of the 117
Riverbank Road property (the “new owner”). Luckily, we were able to get the new owner to agree to the
purchase and principal. The new owner would not enter into a purchase and sale agreement until he
knew what his mortgage holder would need to give partial release of the mortgage.
Then this Board granted my client time to allow for the new owner to get an agreement from the
mortgage holder to grant a partial release of mortgage. Unfortunately, there was considerable delay
because the mortgage holder would not even consider granting a partial release until the new owner had
been on the property for at least one year (new owner purchased 117 Riverbank Road in June 2022)
even though the new owner offered to pay the mortgage payments through June 2023 in advance.
Finally, last month the new owner made arrangements with his mortgage holder to get a partial release
of the mortgage and, as mentioned above, we have signed purchase and sale agreement for the subject
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property.
III.Special Permit and Conservation Commission Relief
I have now applied for a special permit pursuant to § 350-9.3. (A)(10) which is extremely similar
to the application this Board granted in 2021. A copy of the application is filed herewith. Please note
that the copy contains a copy of the purchase and sale agreement. I have included herewith the
application and memorandum in support of the special permit with exhibits as an Appendix. Now,
more than ever, there is a clear possibility of zoning relief that would legalize the structure and make
the teardown order moot. I am simply asking that any substantive hearing on the teardown order
hearing be postponed in order to give this Board time to consider the new special permit application
and the Conservation Commission time to consider the related matter before that board.
The situation is different than it was in 2021. This time we have a purchase and sale agreement,
and we are already undertaking the work to seek the related Conservation Commission relief. We have
retained Mr. Ward Smith, a well-respected wetlands specialist, who has already started working on
applications for the related relief which will be sought from the Conservation Commission.
IV.Hearing on August 24, 2023
Unfortunately, due to a scheduling problem, I personally will not be available on August 24,
2023, but my law partner, Attorney Roger Lipton, will attend the hearing (which we understand will be
remote) to represent our client. Attorney Lipton is more than familiar with zoning matters as he is the
Chair of the Zoning Board of Appeals of Whately, Massachusetts. However, if you decide to
substantively go forward with the teardown order despite the arguments and representations made
herein, I respectfully request that you at least grant my client a short extension such that I can be
present at the substantive hearing as I am more familiar with this particular matter.
V. Timing of continuance
I realize that this Board will act quickly and efficiently in regard to the Special Permit. I fully
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expect the hearing soon after the proper noticing has been undertaken. However, the matter before the
Conservation Commission may take more time. That is why am asking for an extension of
approximately four months in regard to the substantive hearing on the teardown order. Our wetlands
expert, Ward Smith, believes that this timeframe is reasonable, and he hopes to obtain relief within that
timeframe. Accordingly, I request that the hearing be postponed until December 21, 2023, or sometime
soon thereafter, at the convenience of this Board.
VI. Waivers
If the Board grants a continuation of the substantive hearing, my client will waive his
rights pursuant to two separate provisions of M.G.L.A. 40A § 15. Specifically:
1. The third paragraph of M.G.L.A. 40A § 15 provides, in part, "The board of appeals shall hold
a hearing on any appeal, application or petition within sixty-five days from the receipt of
notice by the board of such appeal, application or petition." If a continuation is granted, my
client waives any claim that the substantive hearing should happen within 65 days of the
notice of the appeal.
2. The fourth paragraph of M.G.L.A. 40A § 15 provides, in part, "The decision of the board
shall be made within one hundred days after the date of the filing of an appeal, application or
petition, except in regard to special permits, as provided for in section nine." If a continuation
is granted my client stipulates that any time granted for the continuance will be excluded
from any calculation with reference to the timeliness of the decision pursuant to this
provision.
VII. Conditions
My client fully understands that no work is to be done on the structural addition to his home, the
addition which is the subject of the Building Commissioner’s order, and he will undertake no work on
the structure. He also understands that the structure is not to be utilized.