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Watling Letter to ZBA 2023-12-12 Continuation Request with Exhibit GML GREEN MILES LIPTON, LLP ATTORNEYS AT LAW 77 PLEASANT STREET P.O. BOX 210 JOHN J. GREEN, JR. NORTHAMPTON, MA 01061-0210 HARRY L. MILES PHONE (413) 586-8218 ROGER P. LIPTON FAX (413) 584-6278 JOHN M. MCLAUGHLIN* (Main Office) _ MICHAEL PILL SUSAN L. MILES WESTFIELD OFFICE: RAYMOND W. ZENKERT, JR., OF COUNSEL** 48 EAST SILVER STREET, SUITE 5 DAVID C. KUZMESKI (Dec.) WESTFIELD, MA 01085 BRIAN L. BLACKBURN (Dec.) PHONE (413) 642-8367 *ALSO ADMITTED IN CONNECTICUT FAX (413) 579-5357 ** ALSO ADMITTED IN OHIO & MICHIGAN www.greenmiles.com 1 December 12, 2023 Northampton Zoning Board of Appeals City Hall 210 Main Street, Rm 11 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, December 14, 2023, at 5:30 PM. Fourth 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 Order is scheduled for December 14, 2023. For the reasons set forth herein I am requesting the postponement of that hearing until this Board’s February 22, 2024 meeting. One of the principal grounds, though not my only ground, 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). As you well know, this Board granted my client a Special Permit for certain zoning relief which 2 will make the teardown order moot. A copy of the Special Permit, as recorded at the Registry of Deeds, is attached hereto as Exhibit A. Essentially the Special Permit provides that the relief granted is dependent upon my client’s purchase of approximately 1568 ft.² of property from his neighbor. The Special Permit states that my client should purchase the property before the end of January and that the Special Permit will be null and void at the end of February if my client fails to acquire the property. My client has not yet purchased the property. My client only intends to purchase the property if he receives an Order of Conditions from the Conservation Commission to allow for the construction which is the subject of the Special Permit. My client has retained Ward Smith, a well-respected wetlands expert, who has filed a Notice of Intent at the Conservation Commission seeking an Order of Conditions to allow the construction which is the subject of the Special Permit. I understand that this Board has electronic access to the filings made by Mr. Smith; I invite you to review those documents. I spoke with Mr. Smith yesterday and he believes that a hearing before the Conservation Commission on our Notice of Intent may be held on January 11, 2024. Theoretically, we could receive an Order of Conditions that day, but the Conservation Commission may close the hearing and not issue an order for a number of weeks. It is even possible, although not likely, to have a request for peer review or an opposition, which could delay matters. Additionally, once an Order of Conditions is entered, there is a 10 business day period during which an appeal for a Superseding Order to the Department of Environmental Protection (“DEP”) could be filed. In light of the above, I ask this Board to further postpone any substantive hearing on the teardown order until, at least, February 22, 2024. At that point in time, we may better understand how the Conservation Commission will act regarding our Notice of Intent to allow for the construction which is the subject of the Special Permit. It is possible for all relevant matters to be resolved by then. I intend to attend the December 14, 2023 hearing to discuss with the Board what actions, if any, should be taken in regard to the Special Permit, in light of the time frames I have set forth above with 3 reference to the Conservation Commission and intended purchase of the property. II. 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. III. 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. He will undertake no work on the structure. He also understands that the structure is not to be utilized. IV. Conclusions Based upon the reasons and authorities set forth above I hereby request that the substantive hearing on the teardown order be postponed until February 22, 2024, or sometime soon thereafter at the convenience of this Board. I understand this matter is taking longer than we originally hoped, but my client has received the Special Permit and he has filed for the Notice of Intent. With an Order of