09-001 588 Kennedy Road Zoningti
o
Date
Filed File
VARIANCE APPLICATION
Alan Verson, attorney for
1.
p rederick J. Ostrowski and Alice L. Ostrowski
Name of A licant• F
Address. 56 Main Street, . or t ampton Telephone: 586 -1344
2.
Owner of Property Frederick J. Ostrowski and Alice L. Ostrowski
Address: 588 Kennedy Road, Leeds Telephone: - 584 -0464
3.
Status of Applicant Owner Contract Purchaser
Lessee Y Other (explain attorney for owners )
4.
Parcel Identification Zoning Map Sheet, 9 Parcels 1 ,
Zoning District(s) Rural Residential �
Street Address 588 Kennedy Road Leeds
5.
Variance is being requested under Zoning Ordinance
Section 6.12 (a) , Page 6 -13 -
6.
N arrative Descrintion of Proposed Work / Protect: (Use
additional sheets if necessary)
see attached Description of Proposed Work
7.
State How Work /Proposal Complies with Variance Criteria (See
Applicant's Guide and use additional sheets if necessary)
see attached Compliance with Criteria___
8.
Attached Plans Sketch Plan x Site Plan
None Required
9.
Abutters (See instructions. Use attached abutter's list)
10.
Certification I hereby certify that I have read the GUIDE TO
APPLYING FOR A ZONING VARIANCE, SPECIAL PERMIT OR FINDING and
that the information contained herein is true and accurate to
the best of my knowledge. Frederick J. Ostrowski and
c Os rowski
Ali
Date:
12/ *A /90 Applicant's Signature: Hy
Alan Verson, their attorney
3/50
.
�rederzcx J. O�trowski ano �lice -. Ostrowski oresently reszde in
Leeos zn a szngle-fami house �������� �� � �6-acre parcel tha has
frontage on Kennedy Road of 215.47 feet. They propose to divide the lot
by creating two flag lots under Section 6.13, and then to erect another
house. in which they would ii��, t�at would be �ocated aoproximate��
1800 feet o�f of Kennedy n9 house.
There is an existing dri Road that was
ccmstruc�ed approximately eig�� years
other houses in addition to app�ican�
excenoed approximatelv another 600 fe
This orivewav is located such that �h
require� access fron�ane, access widt
re=_ison, the Ostrowskis request a spec
vehicular access to the new house lot
�go. This driveway Bervices two
s present house, and it wouid be
to reach the proposed new house.
� flag lots would not have the
�. or access roadway. For this
�a> permit under Section 6.12 for
across the side lot line.
Since the access driveway will be the same common driveway as .
presently exists for the three existing house, a special permit for a
common driveway is requested. As stated above, this driveway has been
in existence for about eight years and has created no problems' The
Fire Department has had occasion to travel the length of it, and will
state in writing that they have no objection to it.
Due to the fact that the common driveway wil I end up servicing a
total of f our houses, a variance is requested f rom the I imitation of
Subsection 6.12(a) that the common driveway serve no more than three
In summary, the Ostrowskis request the following:
'..►
I Spe rill: _ under Section 6.13 for a Uag , .a . ,_ _ for 10
exi sting house lot.
2 .1 Speci Permit under Section 6.13 or a tlag lot for Zne new
lot.
3,. Spec Permit under Section 6.12 for vehicular a=_e__ to the
new house lot over M_ side lot in=.
4.! =pe - under Section =.12 for u of - -omi= driveway
in c with th new house
1 Varian from he err+ -
_ . ':'a;'i�_.i3_ -_ t:l. J4 i
= oi;?i'^on driveway driveway `o Serv a t
_.
Dt .
ion of _� _
s i Se c tio n r:,1 - (a' to a
of four it o Ise rather than three
houses.
7. COMPLIANCE 1 WITH t)ARIANC'E CRITERIA
1 .. Th s hape _- ._ topography o t the _s_r' i land, _i -i = 63 acres
with of i v 2 14 feet of frontage and rising 2 35 fee in el evatio n from the
road, 1s a circumstance that is not general found throughout the Rural
Residential district. The existence of this unusual shape and
topography is what creates the need for the va
.? Literal enforcement of Section 6.12(.a) world prohibit creating
a new flag lot for the proposed new residence merely- because the common
driveway would then service four, rather than three, houses. This would
be a substantial hardship because the entire back: 57-a.cre parcel could
not be utilized. This hardship is not personal to the Ostrowskis, but
would be experienced by anyone attempting to make a reasonable and
permitted flag lot use of the property. The need for the variance could
be avoided by putting a second driveway all the way !gyp from Kennedy
Road, but that would be extremely expensive, destructive to the
1
}ands—aoe an�. szn it wo i d be ourte ,��io�e fr�m �ne roa�.
aes��etica``° o�fensive to �he neig���rhso�.
�h� �ourts �nd �onin� treat�s�s have r�co9nize� �ha� � `ess�r
s�owzng of �ar�shio is appro�riate �or �ncon�equent�ai �,�e� s�
var nces because they do not impact upon the neiqh no- rhood
or va�ue of adjacent oroperties.
owznq to servic� �our nouses. �n�tead �� �hree,
would not cause de�riment �o the oublic good or derogate from the inten�
of tne ordinance. �t would, in fact. be a most mznor an� insignificant
dev�a�ion �rom the ordinance that wouid barely be of concern �o the
nei9nborh000. and would reinforce, racher than detract from, the public
I
+` stow
Date Filed
* Sww r
File No.
ZONING PERMIT APPLICATION
Zoning Ordinance section 10.2
Z
0
I .
0
Alan Verson, attorney for
1. Name of Appl icant : Fre derick J. Ostrowski and Alice T Ostro
Address: 56 Main St. Northampton Telephone. __ jak-jj4 JL
2. Owner of Property Frederick J Ostrox -ski and Alice L 0st roWski
Address: 588 Kennedy Road, Leeds Telephone. 58L -0464
3. Status of Applicant Owner Contract Purchaser )
Lessee Z Other (explaizi:attornev for ox:mers
4. Parcel Identification Zoning Map Sheet# 9 arcel# 1
Zoning Districts) Rural Residential
Street Address 588 Kennedy Road, Leeds
5. Compliance with Zonina Existing Proposed
Use of S lit =4 /Property residence 2 residences
Size of Structure (sq.ft.)
Building height
. Building Coverage 1300 feet
Setbacks - f=ont 230 feet
- side
- rear `
Lot Size 57 acres
Frontage 107 feet
Floor Area Ratio
% Open Space
Parking Spaces
Loading Spaces
Signs
Fill (volume & location)
6. Narrative Description of Proposed Work /Proiect: (Use
additional sheets if necessary) attached
7. Attached Plans Sketch Plan X Site Plan
8. Certification I hereby certify that the information contained
herein is true and accurate to the bee
� y wledge.
t t 4ws i and
Date: 12 /z 6 / 90 Applicant's Signature: B
_ _ _ Alan Ver_po�► their _�t�oney
THIS SECTION FOR OFFICIAL USE ONLY
Approved as presented
X Denied as presented
Re '�✓ `�
Signature or to
: ! DEC 2 8
- /90
M
Frederick J. Ostrowski and Alice L. Ostrowski presently reside in
Leeds in a single - family house situated on a 66 -acre parcel that has
frontage on Kennedy Road of 215.47 feet. They propose to divide the lot
by creating two flag lots under Section 6.13, and then to erect another
house, in which they would live, that would be located approximately
1800 feet off of Kennedy Road, to the rear of the existing house.
There is an existing driveway off of Kennedy Road that was
constructed approximately eight years ago. This driveway services two
other houses in addition to applicant's present house, and it would be
extended approximately another 600 feet to reach the proposed new house.
This driveway is located such that the flag lots would not have the
required access frontage, access width, or access roadway. For this
reason, the Ostrowskis request a special permit under Section 6.12 for
vehicular access to the new house iot across the side lot line.
Since the access driveway will be the same common driveway as
cresently exists for the three existing house. a special permit for a
common driveway is requested. As stated above, this driveway has been
in existence for about eight years and has created no problems. The
Fire Department has had occasion to travel the length of it, and will
=:ate in writina that they have no ob;ection to it.
Due to the fact that the common driveway will end up servicing a
total of four houses, a variance is requested from the limitation of
Subsectior. 6.12(x) that the common= driveway serve no more than three
houses.
in summary, the Ostrowskis request the following:
` mow 1"001
1.) Special Permit under Section 6.13 for a flag lot for the
existing house lot.
2.) Special Permit under Section 6.13 for a flag lot for the new
house lot.
3.) Special Permit under Section 6.12 for vehicular access to the
new house lot over the side lot line.
4.) Special Permit under Section 6.12 for use of a common driveway
in connection with the new house lot.
5.) Variance from the provisions of Section 6.12(a) to allow a
common driveway to service a total of four houses rather than three
houses.
r NWAW + wool
Date Filed
File #
VARIANCE APPLICATION
Alan Ve - _son, attorney for
1. Name o f Applicant: Frederick J. Ostrowski and Alice L. Ostrowski
Address • 56 Main Street, Nortnampton Telephone: 586 -134.8
Alan Verson, their attorney
3/90
2 .
Owner of ProoertY Frederick J. Ostrowski and Alice L. Ostrowski
Address: 588 Kennedy Road, Leeds Telephone: 584 -0464
3.
Status of Applicant Owner Contract Purchaser
Lessee X Other (explain: attorney for owners )
4.
Parcel Identification Zoning Map Sheet# 9 Parcelr' 1 ,
Zoning District(s) Rural Residential ,
Street Address 588 Kennedy Road Leeds
5.
Variance is being requested under Zoning Ordinance
Section 6.12(a) Page 6 -13
6.
Narrative Description of Proposed Work /P_roiect (Use
additional sheets if necessary)
see attached Description of Proposed Work
T
LL
7.
State How Work /Proposal Complies with Variance Criteria (See
Applicant's Guide and use additional sheets if necessary)
see attached Compliance with Criteria
8.
Attached Plans Sketch Plan X Site Plan
None Required
9.
Abutters (See instructions. Use attached abutter's list)
10.
Certification I hereby certify that I have read the GUIDE TO
APPLYING FOR A ZONING VARIANCE, SPECIAL PERMIT OR FINDING and
that the information contained herein is true and accurate to
the best of my knowledge. Frederick J. Ostrowski and
Alic Os rowski
Date:
12/ A"T /90 Applicant's Signature: By:
Alan Verson, their attorney
3/90
� ^
L' .
Trederzck J. ustrowski and Alice L. Ostrowsxi oresently reside in
LeeoE in a singls-4amilv house situated on a 16-acre oarcei that has
frontage on Kennedy Road of 215.47 feet. They propose to divide the lot
bv creating two flag lots under Section 6.13. and then to erect another
moase, in which they would live, that would be located approximately
1805 Jeet off of Kennedy Road, to the rear of the existing house.
There is an existing driveway off of Kennedy Road that was
consrructed approximately eight years ago. This driveway services two
Uner houses in addition to applicant's present house, and it would be
e,tEnded approximately another 600 feet to reach the proposed new housE'
This arivewav is located such that the flag lots would not have the
reouired access frontage, access width, or access roadway. For this
reason, the Ostrowskis request a special permit under Section 6.12 for
vehicular access to the new house lot across the side lot line.
Since the access driveway will be the same common driveway as
presently exists for the three existing house, a special permit for a
common driveway is requested. As stated above, this driveway has been
in existence for about eight years and has created no problems' The
Fire Department has had occasion to travel the length of it, and will
state in writing that they have no objection to it.
Due to the fact that the common driveway will end up servicing a
total of four houses, a variance is requested from the limitation of
Subsection 6.12(a) that the common driveway serve no more than three
houses.
In summary, the Ostrowskis request the following:
I
HeEi=l P mit :-rol=e!' - :G:__ion 6.13 To __ _ ay lot f or --_-
2.) Special Permit under Section 6.13 Tor a Mag iot for tva ne,�
:i.. SUCt_lai P e rmit under •Ez t2_! 6.12 for vehicular access to the
new house __ o ver the side _
4.. _oacial Permit under Section 6.1 Tor use o f _. common driveway
in conne tai _n he n ew house lot.
_.. Variance from the = -ovisions of Section 6.12(a) to allow a
common driveway to service a total of four houses ra ther than thre
h ouses.
.
7. COMPLIANCE WI TH VARIANCE CRITERIA
i
.. . T he shap and topography of the - -_ _�
- - -,.a l an d, being 63 acres
with My 214 feet of frontage and rising 2 35 f _-_ in elevation ation T:''om the
road, is a circumstance that is not generally found throughout the Rural
;residential (distr The existence of this unusual shape and
topography is what creates the need for the variance.
?.) Literal enforcement of Section 6.12ta7 would prohibit creating
a new flag lot for the proposed new residence merely because the common
driveway would then service four, rather than three, houses. This would
be a substantial hardship because the entire back 57 -acre parcel could
not be utilized. This hardship is not personal to the Ostrowskis, but
would be experienced by anyone attempting to make a reasonable and
permitted flag lot use of the property. The need for the variance could
be avoided by putting a second driveway all the way up from Kennedy
Road, but that would be extremely expensive, destructive to the
1
+ ,
�anoscaoe an�. ��rc� �� w���� oe ouite vzs���e from t�e ~oao.
aest7.etica��v s��ens�`e �� �ne "eighcor��od.
��e cour�s an� z�nzng �reat�ses heve recogn -�� that a �esser
show�ng o� �ar�s�i� �s aopropriate �or nseouen��a� �vpes of
�.� ���ow�ng ��� r�a� to service four �ouses. i�s�eab of three,
woul� not cause detr�men� �o the pub}ic good or deroq�te from the intent
of the ordinance. I� wou�d, in fact� be a most minor and insignificant
om
The requirement (a) is not satisfied and a Variance from it has
been requested.
Requirement (b) is clearly satisfied, as the driveway has been in
existence for seven years. For the same reason, the existing common
driveway should be considered to be of suitable construction. It is
asphalt, wide enough for two cars to comfortably pass and is acceptable
to the Fire Department. The driveway was lawfully constructed under the
regulations in existence at the time of its construction.
The general conditions for issuance of a special permit, at Section
10.10, are also satisfied with respect to all three Special Permit
applications. The use as single - family residence on a flag lot, with
access over a side lot line and on a common driveway is appropriate for
the Rural Residential district. The addition of one more house. on a
57 -acre parcel with private water and sewer, would hardly overload any
municipal systems or create traffic congestion. The use would maintain
in every respect the character and integrity of the area and be in
harmony with the intent of the Ordinance.
TIWU . .
Requirements a.), b.), and c.) are not satisfied by the locus, but
those requirements are deemed satisfied by the granting of a permit for
access over a sideline under Section 6.12, and such a permit has been
applied for simultaneously with this application.
Requirements (d), (e), (f), (g), and (h) are all satisfied, as is
clearly shown on the Site Plan submitted with this application.
Requirement (i) is satisfied because the driveway has been in
existence for approximately seven years, and the easements are set forth
in a the Declaration of Restrictions and Easements pertaining to the
subject land, dated May 8, 1981, and recorded in the Registry of Deeds
at Book 2222. Page 152. The relevant portions of that document are as
fol.ews:
B. Maintenance The cost of maintenance and repair of
the driveway, including removal cf snow and ice. from
Kennedy Road to a point on the driveway parallel with the
most westerly portion of the most westerly residence
constructed on Lots 2 and 3 shat: be borne equally by the
owners of Lots 2, 3 and 5. provided however, that
(Ostrowskil shall be solelv responsible for removal of snow
and ice from the driveway for so long as [Ostrowski) owns
Lot 5. or any portion thereof.
C. Easements Over Driveway Easements are granted for
the benefit of all Lot Owners, as are necessary to enable
such Owners. and their invitees and guests. to _pass and
repass on foot or by vehicle for the purpose of gaining
access to their lots, or on foot for the purpose of gaining
access to the Woodland. The [Ostrowski) shall also have the
right to grant easements to utility companies as necessary
for the construction and servicir -a of utility lines.
Requirement (j) is satisfied bec -:use the driveway. as stated above.
has been in existence for seven years, has been of adequate design and
M
construction to serve the existing three houses, and is acceptable to
the Fire Department.
Requirements (k) and (1) are satisfied. No provisions for drainage
or storm water runoff are necessary because of the size and locations of
the lots.
The general conditions for issuance of special permits, at Section
10.10 of the Ordinance, are satisfied. See the discussion of those
conditions attached to other applications.
KENNEDY
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City of Northampton, Massachusetts
Office of Planning and Development
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 586 -6950
• Community and Economic Development
• Conservation • Historic Preservation
• Planning Board • Zoning Board of Appeals
• Northampton Parking Commission
January 3, 1991
Frederick J. and Alice L. Ostrowski
c/o Atty. Alan Verson
56 Main Street
Northampton, MA 01060
I.."
Your Application for a Variance which has been submitted to the
Zoning Board of Appeals, will be reviewed for recommendation by the
NORTHAMPTON PLANNING BOARD when it meets February 14, 1991 at 7:00
p. m. in Council Chambers, Wallace J. Puchalski Municipal Building
(the building behind City Hall). You and /or your representative
are invited to attend this meeting to discuss the merits of your
application. This meeting is informal, and the vote of the
Planning Board to recommend Approval or Denial of your request is
NOT binding on the Zoning Board of Appeals.
Approximately two weeks before you are scheduled to attend the
Public Hearing before the Zoning Board of Appeals, a Legal Notice
announcing the meeting will be published in the Daily Hampshire
Gazette. You, and all the abutters you listed in your Application,
will receive a copy of this Notice in the mail. Please understand
that there are TWO meetings you should attend - -the Planning Board,
and the Zoning Board of Appeals.
If you have any questions, please contact the Office of Planning
and Development, Room 11 in City Hall, Telephone 586 -6950,
Extension 262.
Sincerely,
Robert J. Pascucci
Board Secretary
Y-
(Quicki -Note'
Date 1 -8 -91 19
TO Robert Buscher, Chairman
Subject ZBA Cases
ZBA
I
File No 90V66 & 90SP67 -70, Ostrowski, Kennedy Road
Driveway has slopes in excess of 15%
I
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47 -231 Poly Display Pack (50 Sets) From
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47 -232 Desk Dispenser (125 Sets)
Mace m USA
�' Samuel B. Brindis, Director, DPW
LAWRENCE J. JONES
CHIEF
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c&x°r#4tutgrt ' Mttssttc4uselts
01068
FIRE DEPARTMENT EADH QUARTERS —
OFFICE OF CHIEF RECEIVEn 60 MASONIC STREET
TelejA"e 584 -7165
JAN 2 81991
( WFICE OF PtAV"
T0: Northampton Planning Board
FROM: Fire Chief Lawrence J. Jones,
DATE: Jan. 28, 1991
RE: Request of Frederick J. and Alice L. Ostrowski - Flag Lots and Common Driveway
588 Kennedy Rd.
The Northampton Fire Department inspected this site and found that it would
not be a problem for response by the Fire Department Vehicles.
The Northampton Fire Department recommends that the following be considered
when allowing the use of Flag Lots or Common Driveways:
I. If a flag lot is used so that any structure built on it will be
located an appreciable distance from the public road, a substantial
roadway capable of supporting heavy fire apparatus should be required.
This roadway should be at least 12' wide and may be colprovia, gravel,
crushed stone, etc. Our main concern is that it be accessible during the
spring mud season or other wet periods. If it is necessary to install
any culverts, they should be capable of supporting fire apparatus.
2. When one driveway is common to two or more properties, a suitable sign
should be posted near the main road and at the cutoff to each property.
This sign should include visible street numbers in case of emergency
response by the Fire, Police or Ambulance Departments.
LJJ /lml
W
NANO-
ALAN VERSON
ATTORNEY AT LAW
..i
36 MAIN STREET - SUITE 218
NORTHAMPTON, MASSACHUSETTS 01060
TELEPHONE (413) 386 -1348
February 5, 1991
Mr. Wayne Feiden
Northampton Planning Dept.
212 Main Street
Northampton, MA 01060
Dear Wayne:
In connection with the pending application for variance of .
Frederick and Alice Ostrowski, please consider the legal points raised
in this letter in arriving at any recommendation made to the planning
board and zoning board. Also, please see that the individuals sitting
on the zoning board for this matter receive a copy of the letter.
The statute governing the granting of variances, G.L. Chapter 40A,
Section 10, does not indicate that there should be any difference in the
degree or type of "hardship, financial or otherwise" that must be shown
for different kinds of variances. Nonetheless, the Massachusetts
caselaw and the treatises on zoning clearly indicate that the
requirement of hardship can be enforced somewhat less rigorously or
precisely if the application involves a relatively minor dimensional
issue.
Almost all of the Massachusetts cases on variances deal with a use
variance or other substantial variance from the zoning ordinance. In
almost every such case, the court on appeal denies the variance. In the
few cases where courts have allowed the granting of a variance, a
dimensional or other relatively minor variance was being sought. See
Josephs v. Board of Appeals of Brookline 362 Mass. 293 (1972) and
Wolfman v. Board of Appeals of Brookline 15 Mass. App. Ct. 112 (1983).
In DiGiovanni v Board of Appeals of Rockport 19 Mass. App. Ct. 339
(1984), where the court denied a variance, it stated "where
noncompliance amounts to a matter of inches, we might reach a different
conclusion.
These Massachusetts cases have allowed one Massachusetts writer to
conclude that "even relatively minor hardship can justify a variance
where inconsequential dimensional variances are involved." 1
Massachusetts Zoning Manual (1989) pages 9 - 14. A multi- volume
treatise on zoning, dealing generally with zoning laws of various
states, has recognized that there is
Mr. Wayne Feiden 2 February 5, 1991
". the general application, by the courts of
a large number of states, of a lower standard to
the granting of area variances than is applied
to use variances. In many of the decisions, the
language of unnecessary hardship is employed and
the watered -down version of the standard must be
inferred from the results . . . in the case of
area variances, it is assumed by most courts
that adequate protection of the neighborhood can
be effected without the imposition of the
stringent limitations which have been developed
in the use variance cases."
3 American Law of Zoning 3d, section 20.48, Anderson. See also 6 Zoni
and Land Use Controls section 43.20 (2), Rohan.
The variance being requested by the Ostrowskis is certainly minor
and inconsequential in nature. Compared to the types of variances that
are most often requested, such as for use, for frontage or even for size
of lot or setbacks, the issue in this situation can safely be
characterized as a relatively unimportant detail in the zoning
ordinance. The difference between the common driveway serving four lots
instead of three lots would be difficult to recognize or place any
degree of importance upon. It will have virtually no impact on the
immediate abutters or on the neighborhood. It is not a dimensional
issue, as referred to in the above cases and treatises, but it is
directly comparable in terms of being minor in nature, and the same
reasoning should apply.
For these reasons, the Board of Appeals is able to apply a less
rigorous and demanding standard in determining if the Ostrowski
application has satisfied the statutory requirement that there be
"substantial hardship, financial or otherwise."
Thank you for your consideration.
ery truly yours,
ALAN VERSON
ATTORNEY AT LAW
...W
56 MAIN STREET - SUITE 218
NORTHAMPTON, MASSACHUSETTS 01060
TELEPHONE (413) 586 -1348
February S. 1991
Mr. Wayne Feiden '
Northampton Planning Dept.
212 Main Street
Northampton, MA 01060
Dear Wayne:
In connection with the pending application for variance of
Frederick and Alice Ostrowski, please consider the legal points raised
in this letter in arriving at any recommendation made to the planning
board and zoning board. Also, please see that the individuals sitting
on the zoning board for this matter receive a copy of the letter.
The statute governing the granting of variances, G.L. Chapter 40A,
Section 10, does not indicate that there should be any difference in the
degree or type of "hardship, financial or otherwise" that must be shown
for different kinds of variances. Nonetheless, the Massachusetts
caselaw and the treatises on zoning clearly indicate that the
requirement of hardship can be enforced somewhat less rigorously or
precisely if the application involves a relatively minor dimensional
issue.
Almost all of the Massachusetts cases on variances deal with a use
variance or other substantial variance from the zoning ordinance. In
almost every such case, the court on appeal denies the variance. In the
few cases where courts have allowed the granting of a variance, a
dimensional or other relatively minor variance was being sought. See
Josephs v. Board of Appeals of Brookline 362 Mass. 293 (1972) and
Wolfman v Board of Appeals of Brookline 15 Mass. App. Ct. 112 (1983).
In DiGiovanni v. Board of Appeals of Rockport 19 Mass. App. Ct. 339
(1984), where the court denied a variance, it stated "where
noncompliance amounts to a matter of inches, we might reach a different
conclusion.
These Massachusetts cases have allowed one Massachusetts writer to
conclude that "even relatively minor hardship can justify a variance
where inconsequential dimensional variances are involved." 1
Massachusetts Zoning Manual (1989) pages 9 - 14. A multi - volume
treatise on zoning, dealing generally with zoning laws of various
states, has recognized that there is
, Sm ,
Mr. Wayne Feiden 2 February 5, 1991
". . . the general application, by the courts of
a large number of states, of a lower standard to
the granting of area variances than is applied
to use variances. In many of the decisions, the
language of unnecessary hardship is employed and
the watered -down version of the standard must be
inferred from the results •. . . . in the case of
area variances, it is assumed by most courts
that adequate protection of the neighborhood can
be effected without the imposition of the
stringent limitations which have been developed
in the use variance cases."
3 American Law of Zoning 3d, section 20.48, Anderson. See also 6 Zonin
and Land Use Controls section 43.20 (2), Rohan.
The variance being requested by the Ostrowskis is certainly minor
and inconsequential in nature. Compared to the types of variances that
are most often requested, such as for use, for frontage or even for size
of lot or setbacks, the issue in this situation can safely be
characterized as a relatively unimportant detail in the zoning
ordinance. The difference between the common driveway serving four lots
instead of three lots would be difficult to recognize or place any
degree of importance upon. It will have virtually no impact on the
immediate abutters or on the neighborhood. It is not a dimensional
issue, as referred -to in the above cases and treatises, but it is
directly comparable in terms of being minor in nature, and the same
reasoning should apply.
For these reasons, the Board of Appeals is able to apply a less
rigorous and demanding standard in determining if the Ostrowski
application has satisfied the statutory requirement that there be
"substantial hardship, financial or otherwise."
Thank you for your consideration.
ery truly yours,
City of Northampton, Massachusetts
Office of Planning and Development
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 586 -6950
• Community and Economic Development
• Conservation • Historic Preservation
• Planning Board • Zoning Board of Appeals
• Northampton Parking Commission
TO: Northampton Planning Board
FROM: Wayne Feideri , Environmental Planner
RE: Ostrowski Variance and Special Permit Applications
DATE: February 6, 1991
Frederick and Alice Ostrowski have requested a Variance and four
Special Permits to allow them to build a second house on their
property on Kennedy Road. There are several problems with the
proposed project that violate the intent of Northampton's Zoning
Regulations.
The proposed common driveway would serve four homes, be over 1/2
mile long and, in areas, exceed 16 percent slope. This would
increase the risk to public safety, put a greater strain on
emergency services, and violate the intent of 56.12 (Common
Driveways) and 56.13 (Flag Lots), which were passed to allow
greater development options with less stress on municipal services.
For comparison, the Planning Board's Subdivision Regulations
prohibits dead -end roads from being over 1000 (1 /5th mile) feet
long, while many communities use 800 feet as the maximum length.
Public roads are wider, better constructed, typically better
maintained, and not nearly as steep as the proposed driveway.
Variance request (to the ZBA) to allow four homes to use a com
driveway (M.G.L. Chapter 40A i10):
(1) The property is not uniquely shaped nor are there unique
physical circumstances which are different from many parcels
in Northampton.
(2) There is not a substantial hardship if the applicant is unable
to build a second home when there is already one home on the
parcel.
(3) Granting relief would increase the risk to public safety and
put greater strain on emergency municipal services.
The applicant's comments notwithstanding, the variance request is
neither minor nor inconsequential.
Special Permit requests for access across side yard and common
driveway (56.12):
+ 1
(1) The common drive would serve four homes, with a greater chance
of accidents on the drive and greater demand for special
emergency vehicles (with chains, four wheel drive, tanker
trucks etc).
(2) The length and grade of the common driveway provides a great
risk for the movement of emergency vehicles and trucks.
The applicant has not submitted details on the construction of the
road or easements and easement plans, as required in §6.12. If the
Planning Board approves the request, you can deal with these items
by conditions in your approval.
Special Permit requests for flag lots ($6.13):
(1) The zoning requires a fifty foot "access width" from the
street to the lot. There is not effective access on the flag
from Kennedy Road to the newly proposed house site.
(2) The zoning requires that it is possible to place a circle,
with a minimum diameter equal to 1.5 times the minimum
frontage for a non -flag lot, without any portion of the circle
falling outside the property line. With 175 feet of minimum
frontage, the circle diameter is 262.5 feet. The plans show
the proposed house falling 230 feet from the side property
line.
(3) The length and grade of the common driveway provides a great
risk for the movement of emergency vehicles and trucks.
The applicant has not submitted final plans, as required in §6.13.
If the Planning Board approves the request, you can deal with these
items by conditions in your approval.
sftw 1.d'
GARSON R. FIELDS
Berkshire Electric Cable G.
Leeds, Massachusetts
February 12. 1991
Dr. Joseph Beauregard, Chairman
Northampton Planning Board
City of Northampton, City Hall
210 Main Street
Northampton. MA 01060
Dear Dr. Beauregard:
This letter concerns the request of Frederick J.
and Alice L. Ostrowski for four Special permits,
all involving the 66 -acre tract at 588 Kennedy
Road. Leeds, as described in the Public Notices
dated January 31, and February 7, 1991. Please
include this letter in the official record.
I met with Fred Ostrowski on February 9, 1991 on
the proposed building site. He gave me his word
that if the four Special permits were granted, n4
part of the residence, road or other buildings or
facilities would be at all visible from my
residence at 426 Kennedy Road.
If the Planning Board grants the subject permits,
I am requesting that a condition of each permit
be made that nQ portion of the residence. road or
other buildings or facilities be visible from my
residence at 426 Kennedy Road, Leeds.
If you have any questions, please contact me at
584 -3853.
Sincerely,
Garson R. Fields
GRF /dsh
on
.M/
City of Northampton Law Department
MEMORANDUM
TO: WAYNE FEIDEN, ENVIRONMENTAL PLANNER
FROM: KATHLEEN G. FALLON, CITY SOLICITOR 4
SUBJECT: OSTROWSKI FLAG LOT APPLICATION
DATE: FEBRUARY 14, 1991
I have reviewed the Ostrowski Is application for. a special
permit to create a f lag lot in connection with their. property on
Kennedy Road.
The Ostrowski lot is already somewhat unusual in
configuration. It has 214 feet of frontage and a lot width
approximately equal to its frontage for a depth of approximately
200 feet. These dimensions would be acceptable in the RR district
for a conforming lot. However, the Ostrowski lot continues back
as a long strip approximately 100 feet wide and 800 feet long, then
opens out into a very large rectangular area of seven ( 7 ) acres,
more or less. There is a house located in this rear portion. A
common driveway serves the Ostrowski house and two residences in
lots located between the rear portion of the Ostrowski lot and
Kennedy Road. The common driveway does not follow the Ostrowski's
strip of land running from Kennedy Road.
The Ostrowskis want to create a flag lot out of the rear
portion of their property by dividing the front strip leading to
the area in half, then running a Fifty (50) foot strip around the
perimeter of the rear portion of the lot. The "flag" portion of
the lot to be created is the rear of the current lot. Access to
the "flag" would not be over the Fifty (50) foot strip but by way
of an extension of the present common driveway.
Currently our flag lot ordinance does not specifically state
that the access strip must extend from the frontage in a straight
line, that it cannot exceed a certain length, or that actual access
to the "flag" must be over the access strip. However, the intent
of the ordinance must be considered as well as the language.
Access to the "flag" must be over the access strip unless the
owner of a f lag lot also receives other zoning relief such as a
permit for a common driveway. However, such additional relief is
purely discretionary. Therefore, the flag lot ordinance must
contemplate the access roadway to the "flag" as being on the access
strip. The flag lot ordinance states that no access roadway shall
have a curve with a "radius of less than Eighty (80) feet. Since
the access strip has two 90 turns, it is clear that it could not
provide access as required in the ordinance. Therefore, I do not
feel that the configuration of the flag lot proposed by the
Ostrowskis is permissible under the ordinance.
In addition, the proposed location of the dwelling would not
conform to the flag lot requirements. Since the frontage required
is 175 feet in an RR district, the house must be 12 times that
distance from the lot line. The house as shown is only 225' from
the lot line instead of the required 262.5 feet.
In any case, Section 6.13(j) gives the permit granting
authority the right to refuse a flag lot special permit if it feels
that the grade, length and location of the access driveway is not
suitable. In this case, the proposed access will be over a common
driveway which exceeds 2,000 feet in length. Our subdivision
regulations do not permit a dead end street of more than 1,000
feet. The driveway has, in places, a 16% slope; clearly greater
than anything allowed in the subdivision regulations. It is well
within the Planning Board's discretion to find that, even if it
feels the Ostrowskis' flag lot layout is permissible under the
current ordinance, the proposed driveway does not provide adequate
access.
Finally, the applicants have requested a variance to permit
the common driveway to serve four houses rather than the three
allowed by the zoning ordinance. I have read Attorney Verson's
letter stating that he views this in the same light as a "de
minimis" dimensional variance. He seems to imply that the
requirements for a variance do not need to be as stringently
enforced. I disagree.
The cases which discuss "de minimis" dimensional variances
mean just that. The amounts by which the parcel in question varies
from the requires dimensions under zoning are minuscule and would
certainly not impair the character of the neighborhood. I see no
correlation between this line of cases and the variance request of
the applicants. I do not agree with Attorney Verson that it is
"minor and inconsequential ".
In some cases having a common driveway serve four rather than
three residences could be considered as "inconsequential ".
However, the issue turns on the physical characteristics of the
driveway. In this case, the driveway is already over 1,700 feet
long. To reach the proposed dwelling it must be extended another
600 feet, more or less. It has steep grades in several places.
Whether this driveway can physically serve an additional dwelling
is not an inconsequential issue.
CITY OF PJORTHAMPTON moo,
ZONING BOARD OF APPEALS
NORTHAM PTO N.M ASS ACHUSETTS 01060
p�ELI� NOTICE
�.he Zoning Board of Appeals of the City of Northampton will hold a
meeting on Wednesday, February 20, 1991 at 7:00 P. M. in Council
Chambers, Wallace J. Puchalski Municipal Building, 212 Main Street,
Northampton, Mass., at which time Public Hearings will be conducted
on the following:
. -A request for a Variance to a llow a common driveway which will
service more than three houses at 588 KENNEDY ROAD.
APPLICANT: Frederick J. & Alice L. Ostrowski
c/o Atty. Alan Verson, 56 Main Street, Northampton
copies of the Applications are available for public inspection
during regular business hours in Room 11 of City Hall.
js/ Robert C. Buscher, Chairman
PUBLISH: February 6 and 13, 1991
BILL: Northampton Zoning Board of Appeals
c Office of Planning and Development
Room 11, City Hall, 210 Main Street
Northampton, MA 01060
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Northampton Planning Board
February 14, 1991 Meeting
Pane One
The Northampton Planning Board met at 7:00 p. m. on Thursday,
February 14, 1991 in Council Chambers, Wallace J. Puchalski
Municipal Building, Northampton. Present were Chair J. Beauregard,
J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter
and J. Holeva; P. Kim and W. Feiden as staff.
At 8:00 P. m., Ch. Beauregard opened the Public Hearing on the
Applications of Fred and Alice Ostrowski for four Special Permits
relative to creating two flag lots, gaining access to a parcel via
other than the front lot line, and creating a common driveway. A
Variance is also requested to allow the common driveway to serve
one more house than allowed. (The Board will discuss the variance
in the context of the Special Permits, and make a recommendation to
the ZBA.) Atty. Alan Verson, representing the Ostrowskis,
explained that they bought the entire 85 acre parcel in 1981.
Three building lots were created, and are now occupied by Grinnell,
Hinckley, and Ostrowski. The Ostrowskis wish to sell the house in
which they now live, and build a smaller one toward the rear of the
parcel. To accomplish this, there will be some "land swapping"
involving the three residents, so that Grinnell and Hinckley are
left with legal frontage on Kennedy Road; the current Ostrowski
parcel becomes a flag lot with adequate frontage, and the proposed
new lot becomes a flag lot with adequate frontage. The existing
common driveway will be extended to serve the new home, which will
not be visible from the road. He explained that there are deed
restrictions whereby Grinnell and Hinckley assented to Ostrowski,
at some point in the future, being allowed to create another lot
and build another house on it. He described the driveway, which
was installed in 1983, as "not a quick and cheap gravel road. It
has a 12" -24" gravel base, four big culverts and two layers of
asphalt - -it has never been a problem in eight years." He addressed
the Flag Lot criteria, Section 6.13, and claimed to satisfy (a)
through (i) . " (j) is what this hearing is about - -the grade, length
and construction of the driveway. Feiden says this road is
woefully inadequate. This Board routinely relies on the Fire
Department's opinion on driveways. Chief Jones has found the
driveway acceptable. In spite of Mr. Feiden's opinions, the Fire
Department has gone up the length of it twice with no problems.
The Police Department has done the same. Feiden says 16% grades
exist, but from Kennedy Road to the new lot averages 11 %. The
length of the driveway from Kennedy Road to the lot line of the new
lot is 1/3 of a mile, not a half -mile. As. to the quality of
construction, Feiden says it 'compares very poorly to municipal
roads.' This is not a municipal road, it's a private driveway. Is
it an adequate private driveway? I think so, and I submit to you
it is unquestionably of adequate construction. This is a private
development that puts no strains on the city -- private water and
sewer, private road, no DPW maintenance, no street lights." Mr.
Verson then turned to the Special Permit under Section 6.12 for
access on the side of the lot, and said, "This road has been there
Northampton Planning Board
February 14, 1991 Meeting
Page Two
for eight years - -same side line access. He then addressed the
Special Permit for the common driveway, and explained, " All we need
is another 50' of roadway to reach the fourth house on the 57 acre
lot. Requirement (a) says, 'no more than three lots shall be
serviced.' We ask that the Planning Board approve the Special
Permit for the common driveway, and submit to the ZBA a
recommendation approving the variance. As to the variance, we
satisfy the requirements. The size, shape and topography is highly
unusual. It is not generally found in the district - -huge acreage,
elevation, and large frontage. Literal enforcement would create a
hardship. Without the variance, Ostrowski cannot make use of a 57
acre parcel of land. It is not a personal hardship. Anyone trying
to make lawful use of this parcel would have a hardship. The law
allows you to take into account the use requested when looking at
hardship. I submit that the use will make no difference on the use
of this driveway. A fourth house will make no difference. You
don't have to take as rigorous and precise a position: Detriment
to the neighborhood is not an issue. The house will not be visible
to any other neighbor. I believe we satisfy the requirements for
a variance."
Mr. Verson concluded, "To summarize, this is a proposal to build
one single family house. The driveway has been in existence for
eight years. The Fire Department has no problem with it. The
ordinance is intended to foster this type of activity. The plan
does not affect any neighbors."
Mr. Holeva inquired, "Do you need a variance from 6.12(c)? Mr.
Ostrowski replied, "No. There are no blacktopped turnouts, but
there are flat, grassy areas almost the whole length of the
driveway for turnouts, plus the Grinnell and Hinckley driveways.
The road is 12 -14' wide." Mr. Holeva then asked, "Is it practical
to put a driveway to Grinnell from Kennedy Road ?" Mr. Verson
replied, "Probably not," and Mr. Crystal added, "Extremely
impractical."
There were no other proponents, and no opponents. The Chair asked
for general comments, and Mr. Feiden remarked, "With four homes
versus three, the issue is emergency vehicles. If the road is
narrow, there's a much greater safety risk. The average grade may
be 11 %, but 100 feet of ice on a 17% slope will prevent access.
The Fire Department memo is generic - -they write the same thing
every time. Roads should be wider and not so steep. On the
Special Permit for side access, technically (i) is not met. The
50' access width is not met. Kathy Fallon's letter says the two 90
degree turns cause the driveway to fail." At this point, Ch.
Beauregard read Kathy Fallon's two -page memo dated February 14,
1991. He also read a February 12 letter from abutter, Garson
Fields.
v../
Northampton Planning Board
February 14, 1991 meeting
Page Three
Mrs. Hale inquired, "The subdivision rules allow a 1,000 foot dead
end street. This is not a street, right? This is a driveway. Can
we have a 16% slope on a private driveway ?" Mr. Feiden replied,
"On a private driveway, it can be as long and steep as they want,
but a common driveway is more like a street - -more people, greater
risk."
Atty. Verson commented, "What the City Solicitor says about no
radius less than eighty feet, I very strongly disagree The City
Solicitor and Planning Department are acting as adversaries. Miss
Fallon suggests there is a new requirement in the zoning ordinance
that isn't there. The zoning ordinance says 'access roadway Our
driveway does not have 90 degree curves. Kathy Fallon says, 'In
some cases having a common driveway serve four rather than three
residences could be considered as i- nconsequential. In this case,
the driveway is already over 1,700' long. To reach the proposed
dwelling, it must be extended another 600 '.' That -is not even
part of the common driveway. What's on the new lot is not common.
She is just plain wrong. It strikes me as a little unusual that
the City Solicitor is telling you the percent slope is no good,
when the Fire Department says it's OK."
Mr. Feiden urged the Board, "If you approve this and accept the
concept of flag lots having this type of access and frontage, you
are allowing lots to be configured with no effective frontage.
This lot is not unique. There are 60 -acre lots with little or no
frontage in that area. This is a fairly common configuration."
Ch. Beauregard inquired, "Is there a feasible way to put a driveway
to the new lot without a common driveway ?" Mr. Verson replied,
"No." Mr. Ostrowski added, "I would not consider making a separate
driveway. It's $30,000 - $40,000 to do that. Chief Jones tells me
that any road in Northampton that a car can get up, his four -wheel
drive tanker can get up." Mr. Verson added, "An 800' road in a
subdivision could have 16 homes on it. The comparisons of this to
a subdivision are wrong. Keep this in perspective."
Ch. Beauregard asked Mr. Ostrowski is he could put turnouts in the
driveway to comply with the ordinance. Mr. Ostrowski replied that
he could, but "It's plowed wide enough in winter for two cars, and
in the summer the edges are flat." He also said he could add signs
for each residence to comply.
Mr. Crystal remarked, "I was a site inspector for the Variance. I
don't see any real problem with the four Special Permits, but I
have mixed feelings about the Variance. Judy brought up a good
point. I have the distinct impression there's a significant
lobbying effort here, especially from the City Solicitor. This
case brings out some flaws in our ordinance. - Does the flagpole
have to be straight? I know the road fairly well, I've been up
there quite a few times. We should, as a condition,.have them try
Northampton Planning Board
February 14, 1991 Meeting
Page Four
to meet current requirements. The permit to cross the side lot
line - -I see no reason to deny. I don't like the configuration of
the flag lots, but won't disagree. The Variance is my problem. We
upped it a while back from two houses to three. Now they want
four. The impact is minimal, but change the ordinance if it's
inappropriate." Ms. Welter added, "I agree with Andy." Ch.
Beauregard pointed out that the Planning Board had approved a
common driveway in the Heritage Hill development having six houses.
Mr. Feiden added, "Regardless of the ZBA granting the variance,
having four homes would be a reason not to grant the Special
Permit." Mr. Larkin commented, "All the objections are about a
driveway that's been there eight years? I agree with Andy that
there seems to be an effort to criticize this application. The
extension of the common driveway is not 600 it's 40 -=50'. I
agree with Andy on the Special Permits. As to the Variance, it
makes no sense to agree on the Special Permits and then throw it
all out on the Variance."
Mr. Crystal commented, "The way it's configured could be changed.
Access could be on the flagpole. We might want to consider
conditions limiting the number of people using the common driveway,
or the number of bedrooms." Mr. Riddle added, "If this were a
subdivision, I'd be against it. This is a group of neighbors, no
hardship, no problems. All the neighbors agree. In this case, I
see no problems." Mr. Ostrowski reminded the Board, "In 1981, the
deed restrictions when they bought the land, they agreed that a
fourth house can be built." Ch. Beauregard added, There's no other
way to utilize this lot. This is the top of the hill. Without a
Variance or other relief, this lot is useless. That's a hardship,
63 acres that can't be used." Mr. Larkin agreed, saying, "It's
very difficult to meet the hardship criteria. Not being able to
use your land is a hardship, and here it's not detrimental to
anyone. I don't think there's a safety issue. I disagree with
Kathy Fallon. I see this as de minimis - -one lot over the limit is
de minimis Mr. Holeva added, "This is the last lot- -there will
be no more." Ms. Welter commented, "I'm not sure I agree with
Bill. The driveway will have to be used for this new house. It's
a long steep driveway. Is this an appropriate place to make an
exception ?" Mrs. Kim interjected, "There is no predilection here.
The Planning Department and Kathy Fallon are objective. I hope
you won't be concerned about a campaign against this application."
Mr. Verson pointed out, "This road has no trees near it until you
get past Ostrowski's house. The subdivision rule on length has a
concern about trees falling and blocking the road. That can't
happen here." Mr. Feiden advised, "You might want to close the
Public Hearing and wait to see what the ZBA does before you vote."
Mr. Holeva then moved to close the Public Hearing. Mr. Larkin
seconded, and the motion passed unanimously." Mr. Crystal
suggested, "Let's discuss the Variance." Mr. Larkin moved to
` Stow ../
Northampton Planning Board
February 14, 1991 Meeting
Page Five
happen here." Mr. Feiden advised, "You might want to close the
Public Hearing and wait to see what the ZBA does before you vote."
Mr. Holeva then moved to close the Public Hearing. Mr. Larkin
seconded, and the motion passed unanimously." Mr. Crystal
suggested, "Let's discuss the Variance." Mr. Larkin moved to
recommend approval of the Variance. Mrs. Hale seconded. Ch.
Beauregard pointed out, "The fourth house will be small, and lived
in by two people, and should not create a traffic problem." Mr.
Larkin opined, "I don't think we should stand in the way of a
proper use of his property." Other comments were, "No safety
issues," and "The Police and Fire Department have both been up
there." Mr. Crystal commented, "The Fire Department letter is
always the same. It doesn't mean a whole lot. We have approved a
common driveway for six lots at Heritage Hill." Ch. Beauregard
emphasized, "Garson Fields' letter should not affect us." The vote
on Mr. Larkin's motion to recommend granting the variance was 5 -0 -3
(Crystal, Welter, Mendelson) . Mr. Crystal concluded, "I'd like to
wait for the ZBA to vote on the Special Permits."
*w ..000
CITY of NORTHAMPTON
OFFICE of PLANNING and DEVELOPMENT
MEMORANDUM
TO: Northampton Zoning Board of Appeals
or the Northam '
FROM: R. J. Pascucci f ton Planning Board P
SUBJECT: Ostrowski Application for a Variance
DATE: February 15, 1991
FILE:
The Planning Board reviewed this application on February 14,
at which time they also held a public hearing on four Special
Permit applications. The Special Permits are for two flag lots,
access to a parcel over the side lot line, and a common driveway.
The Variance request is to allow four homes to be served by a
common driveway, when Section 6.12(a) allows only three. The Board
voted 5 -0 with three abstentions to recommend that you grant the
Variance. The feeling of the Board was that the 50 extension of
the existing 1,700 foot long driveway was de minimis the fourth
house to be added will be small, and occupied by only two people;
the Fire Department has stated that access to the end of the
driveway was not a problem; the Board had, in the past, approved a
common driveway for six lots at "Heritage Hill "; and finally, there
was agreement that depriving someone of the use of a 63 -acre parcel
was in fact a hardship.
`W
NOTICE OF EXTENSION
GL Ch. 40A, Sec. 15
TO: THE CITY CLERK OF THE CITY OF NORTHAMPTON
Now comes the Petitioner, = 'UL-C �c,
and the Zoning Board of Appeals for the City of Northampton, and
agree that all applicable time periods regarding the following
Petition(s) be extended by an additional �1.5� days:
-
- Z
Date M
V
FEB 2 1 1991 -
P��Litioner
I
ZONING BOARD OF APPEALS
ALAN VERS ON
ATTORNEY AT LAW
%" sa►' ... a .. TT
wKE � . �
M A R I 4 1991
.' OF PLWNIN 1
March 12, 1991
Zoning Board of Appeals
City of Northampton
212 Main Street
Northampton, MA 01060
..-
56 MAIN STREET - SUITE 218
NORTHAMPTON, MASSACHUSETTS 01060
TELEPHONE (413) 586 -1348
Dear Zoning Board of Appeals:
Those neighbors opposing the variance (Opposition) cited two cases
to support their position that the Board is without legal authority to
grant the variance. Upon analysis, those cases do not require such a
conclusion.
In both cases, the applicant had substantially less frontage or
area than required. In Bruzzese v Board of Appeals of Hingham the
ordinance required 20,000 square feet and 125 feet of frontage. The
applicant's two lots had only 12,600 square feet and ninety feet of
frontage with one lot, and no frontage at all with the other lot. The
court could hardly have been expected to reach any other result than the
one it did. In the other case, Gordon v. Board of Appeals of Lee the
ordinance required 125 feet of fraontage and the applicant had a total
of only 100 feet, but even that was divided into two pieces in distant
locations.
In both these cases, the court noted that the applicant had
intentionally created lots that were known not to comply with the
requirements for area or frontage that were in effect at the time. The
court in the Gordon case stated that this factor distinguished it from
another case, Pauldina v. Bruins 18 Mass. App. Ct. 707, which case is
actually much closer to the facts of the Ostrowski case.
In the Paulding v. Bruins case, as the court in Gordon noted, the
lot was created in its particular shape, without adequate frontage,
prior to the adoption of town zoning by -laws. It was, in other words,
legally created, without intention of avoiding or circumventing zoning
requirements, and at a later date required the granting of a variance in
order to put the land to use. Because of this important factor in
Paulding the court on appeal upheld the granting of the variance.
-4/
Zoning Board of Appeals 2 March 12, 1991
City of Northampton
Similarly, in the Ostrowski situation, the lots were created in
1981, prior to the adoption of the common driveway or the flag lot
provisions. All of the lots, and the driveway, were perfectly legal.
Now, ten years later, the Ostrowskis seek to avail themselves of those
more recently enacted provisions to create another lot on fifty -seven
acres of their land. The proposed new lot would satisfy all frontage,
acreage, and other current requirements, but for the fact that the
driveway would serve four instead of three lots. Clearly, these facts
place the Ostrowski case closer to the reasoning of the Paulding case,
rather than Bruzzese or Gordon
The citation by the Oppositon of their two cases also serves to
highlight the relatively inconsequential nature of the variance that the
Ostrowskis are seeking. The applicant in Bruzzese was substantially
below the requirements for both frontage and acreage, and in Gordon
substantially below the requirements for frontage. In the present case
it is merely a question of the driveway serving four houses instead of
three houses.
As this writer pointed out in a letter to the Planning Department,
dated February 5, 1991, the caselaw in Massachusetts allows the zoning
board to take the nature of the variance being requested into account in
looking at the issue of "hardship." Rather than repeat the entire text
of that letter, I have attached a copy of it. As the cases cited in
that letter point out, and as the court in Rodenstein v. Board of
Appeals of Boston 337 Mass. 333 said, if the requested relief is "of
small consequence," the court can take that into account in ruling on
the variance.
Clearly, whether the driveway serves three houses or four houses is
of "small consequence," particularly given the quality of the driveway
construction, the period of years that it has been used without incident
or trouble, and the absence of trees anywhere near it that could be a
potential hazard. It is of particular significance that the Opposition
are people who will not be impacted in any way by an additional house
and are motivated solely by personal issues. The immediate neighbors
have no objections.
The case comes down to the fact that, given the unusual shape of
the Ostrowski land, with sixty -three acres and 214 feet of frontage,
literal enforcement of the limitation of three houses off the driveway
would deprive them of a reasonable and otherwise lawful use of their
land. Due to the minimal nature of the variance and the history of
these zoning provisions, the Board can lawfully conclude that the legal
requirements have been met and the variance should issue.
Very truly yours,
l
:,. .LAN VERSON
ATTORNEY AT LAW
5c. MAIN STRFET - SUITE 2B
\QRTH. \ \IPTON. '.SaSSACHUSFTI'S 01060
TELEI'I(ONF, 1413) 536 -13s3
February 5. 1991
Mr. Wayne Feiden
Northampton Planning Dept.
212 Main Street
Northampton, MA 01060
Dear Wayne:
In connection with the pending application for variance of
Frederick and Alice Ostrowski, please consider the fecal points raised
in this letter in arriving at any recommendation made to the planning
board and zonino board. Also, please see that the individuals sitting
on the zoning board for this matter receive a copy of the letter•
the statute governing the grai,z:na of variances. G.L. C.- -ZDter 40-7.1
Section 10. does not indicate that there should be anv difference in the
decree or type of "hardship. financial or otherwise" that must be show:,
for different kinds of variances. Nonetheless, the Massachusetts
caselaw and the treatises c:: zoning clearly indicate that the
requirement of hardship can be enforced somewhat less rigorously or
precisely if the application involves a relatively minor dimensional:
issue.
Almost all of the Massachusetts cases on variances deal -ith a use
variance or other substantial variance from the zoning ordinance. in
almost every such case, the court on appeal denies the variance. In the
few cases where courts have allowed the granting of a variance, a
dimensional or other relatively minor variance was being sought. See
Josephs v. Board of Appeals of Brookline 362 Mass. 293 (1972) and
Wolfman v Board of Appeals of Brookline 15 Mass. App. Ct. 112 (1983).
In DiGiovanni v. Board of Appeals of Rockport 19 Mass. App. Ct. 339
(1984), where the court denied a variance, it stated "where
noncompliance amounts to a matter of inches, we might reach a different
conclusion,.
These Massachusetts cases have allowed one Massachusetts writer to
conclude that "ever. relatively minor hardship can justify a variance
where inconsequential dimensional variances are involved." _
Massachusetts Zoning Manual (1989) pages 9 - 14. A multi - volume
treatise on zoning, dealing generaily with zoning laws of various
states, has recognizes that there is
C
Mr. Wayne Feiden
�.,
" the general application, by the courts af,
a large number of states, of a lower standard to`
the granting of area variances than is applied
to use variances. In many of the decisions, the
language of unnecessary hardship is employed and
the watered -down version of the standard must be
inferred from the results . . . in the case of
area variances, it is assumed by most courts
that adequate protection of the neighborhood can
be effected without the imposition of the
stringent limitations which have been developed
in the use variance cases."
See also 6 Zonin
3 American Law of Zoni 3d, section 20.48, Anderson.
and Land Use Controls, section 43.20,(2), Rohan.
The varianie being requested by the Ostr.owskis is certainly minor
and inconsequential in nature. Compared to the types of variances that
are most often requested, such as for use, for frontage or even for size
of lot or setbacks, the issue in this situation can safely be
characterized as a relatively unimportant detail in the zoning
ordinance. The difference between the common dri v
aoyr lots
instead of three lots would oe difficult
degree of importance upon. it will have virtually no impact on the
immediate abutters or on the neighborhood. It is not a dimensional it is
issue, as referr blenfterms ofobeingsmsnordinrnatureS� t
and the same
directly compara
reasoning should apply.
For these reasons, the Board of Appeals is able to apply a less
rigorous and demanding standard in determining if the Ostrowski
application has satisfied the statutory requirement that there be
"substantial hardship, financial or otherwise."
Thank you for your consideration.
Very truly yours,
DECLARATION OF RESTRICTIONS AND EASEMENTS
This Declaration of Restrictions and Easements is made this
eighth day of May, 1951, by Frederick J. Ostrowski and Alice L.
Ostrowski, of 107 Front Street, Northampton, Massachusetts (here—
after "Grantor ") as the owners of certain real estate located on
Kennedy Road, Northampton, Massachusetts, more particularly
described in Article II of this Declaration (hereafter "Land ").
Article I. General Intent
It is the general intention of the Grantor to divide the Land
into separate lots for residential purposes whsle minimizing the
disruption or alteratior of the present state of the Land; to
maintain the majority of the land that presently is open fields
forever as open fields; and to have all owners of some portion of
the Land share in the enjoyment of the area of open field on the
easterly portion of the Land near Kennedy Road and the large acreage
of woodland on the westerly portion of the "Land, to the extent that
the same is consistent with the privacy o each lot owner and the
exclusive use and enjoyment by each owner of the area adjacent to
their residence. The provisions of this Declaration shall be
understood and construed to accomplish these general objectives.
D- eery purchaser of a portion of z _e sand, a nd the Grantor,
11 4..✓
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G;z east r�2 — /,Y
does agree to be bound by and receive the benefit of the provisions
of the Declaration. Any right created by this Declaration to use,
travel or walk upon, or enjoy the property of another shall be
construed as an easement, right -of -way and covenant which rims
with the land benefited thereby, and said rights shall be transferred
to the heirs, successors, assigns or grantees of each Owner.
Article II. Definitions
A. Land. The term "Land" shall mean all the real estate
purchased by the Grantor from Charles E. Nehring and Dorothy -M.
Nehring by warranty deed dated May 8, 1981, and recorded in Hamp-
shire Registry of Deeds. Said land is located on the westerly side
of Kennedy Road, Northampton, Massachusetts, and consists of approx-
imately 90 acres of lard. The easterly portion of said 'Land located
within 1000 feet from Kennedy Road is shown on a plan of land
entitled 'Land in Northa.- :pton, '-iassachusett s surveyed for Frederick
J. Ostrowski" dated April
24, 1981,
and prepared by
Almer Huntley.
Jr. and Associates, Inc.,
which plan
is recorded in
Hampshire
Registry of Deeds Plan Book 1 , \ ; ,
Page 3 `�
B. Plan The ter- "Plan" shall mean the plan of land referred
to hereinabove.
C. Owner The ter:. "Owner" sha11 mean the person, persons or
legal entity which has the right to hold title to real property,
whose interest or interests in the Land aggregates fee simple absol"ut e.
D. Lot The 'Clef- 'Lot" shall mean, with reference to Lots 1,
2, j or on the Plan, each portion or parcel of land shown as a
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P�o� aP � — /,�5
numbered area on the Flan. The term "Lot 5" shall mean the area
shown on the Flan as "Other Land of Frederick J. Ostrowski and
Alice L. Ostrowski " including the portion thereof extending to
Kennedy Road, and also including all the remaining portion of
the Land not shown on the Plan consisting of approximately 73
acres.
E. Improvement The term "Improvement" shall include
buildings, outbuildings, garages, carports, driveways, walls,
stairs, decks, poles, terraces, gardens, fences, swimming pools
and all structures of every kind and type.
F. Open Land The term "Opera Land" shall mean that portion
of the Land on Lots 2, 3 and lying within 550 feet of Kennedy
Road, except for those areas designated in this Declaration for
a garden area, for a tennis court, and for the construction of a
driveway, the center line of which shall be approximately as shown
on the Plan.
G. Woodland The term "Woodland" shall mean the approxi—
mately 70 acres of woods and-brush located on Lot 5 and no closer_
than 1.00 feet to any residence constructed on Lot 5.
Article III. General Restrictions
A. Single Family Use No Improvement other than one single
family dwelling house, together with a garage for the storage of
not more than three private automobiles and such other appurtenant
stru -.res as are consistent with the provisions of this Declaration
—3 —
A C�' ';� - / S
and convenient to the use of the premises for a development of this
character shall be constructed or placed upon Lots 1, 2, 3 or 4.
Notwithstanding the foregoing, if otherwise permitted by law, two
single - family dwellings may be constructed on Lot 5, but Lot 5
shall otherwise be subject to the restrictions contained in this
paragraph.
B. Use of Open Land No Improvement of any kind shall be
erected or placed on the Open Land, and that portion of the Open
Land that is open field at the date of this Declaration shall
remain as such and be mowed twice, but not more often, each year.
In the event that it is necessary 'to pay for such mowing, the cost
thereof shall be borne equally by the owners of all five lots.
C. Planting of Trees Trees may be planted on the Open
Land only within 25 feet of Kennedy Road, and on Lot 2 north-
westerly of the driveway but no closer to Kennedy Road than 250
feet, provided that trees northwesterly of the driveway shall
be reasonable in number and shall not prevent mowing from being
done .
D. Cutting on Woodland No commercial harvesting of forest
products shall be allowed on the Woodland, and all tree removal
shall be selective ire nature and conducted in accordance with
good forestry practices directed at improving the quality of the
wooded area.
E. Fences Any =enci.ng erected on the Land shall be open
wire or rail fencin .
F. Wires Underground Telephone and electrical lees, and
- 4 -
, %NW
I. W."
CAS 0 � c� '*t " / S-(0
other cables, wires, lines or pipes of any kind installed after
the date of this Declaration shall be located underground or other-
wise hidden from view.
G. Nuisances No refuse, rubbish, vehicle parts or debris
of any kind shall be permitted to-accumulate upon any Lot which
will render any such Lot or any portion thereof unsanitary,
unsightly, offensive or detrimental to any other Lot, and no
activity, structure or device shall be constructed, built or
maintained which is or may be offensive or detrimental. ,All
unregistered motor vehicles shall be garaged or otherwise hidden
from view. No above - ground pool shall be erected on the Land.
All dogs shall be maintained or restrained in such a manner as
not to become a nuisance to other Lot owners.
H. Subd ivision of Lots. .Lots 1, 2, 3 or 4 shall not be
subdivided to increase the number of permitted residences.
i". Recreational Ve hicles . No motorized recreational
vehicles shall be operated on the Land.
Article IV. Mutual Use of Land
A. Land in Front That portion of Lot 3 and Lot 5 that lies
within 550 feet of Kennedy Road, and that portion of Lot 2 that
lies southerly of the ravine or easterly of the driveway to be
constructed as shown on the Plan may be used by all Lot Owners
for walking, sitting, picnicking, snow - sliding and like activities,
provided that such uses or activities do not interfere t h the
,r
e
privacy of the owners of Lots 2 and 3.
P Y ; '/
B. Woodland The Woodland may be used by all Lot Owners
for hiking, skiing, fishing or like activities (excluding hunting)
that do not interfere with or invade the privacy of the Owner of
Lot 5.
C. Garden. Notwithstanding other provisions in this Declaration
to the contrary, the portion of Lot 5 that lies within 125 feet of
Kennedy Road may be used by all Lot Owners for a vegetable and
flower garden, provided however that the northerly 75 feet shall be
used exclusively by the owner of Lot 2. Any portion of the garden
area not utilized in any given season for a garden shall be subject
for such period to the restrictions on Open Land.
D. Tennis Court
1. Notwithstanding other provisions of this Declaration
to the contrary, if the Owners of three Lots agree, one clay tenr_s
court and fencing may be built and erected in the area that is north-
easterly of the pondAor_ Lot 3, no 31-9-se= L ehaii 14o fu_.ther
�f K,cwn. -dv Reath
than 225 feet fromA and no closer than 50 feet to the northerly
boundary of Lot 5 as that boundary exists in the area of the Land
being referred to. The exact location of the tennis court within
the above - described area shall be determined after consideration of
the difficulties of construction and maintenance of the tennis co.mt
and the aesthetic preferences of all Lot Owners.
2. Each Lot Owner who contributes toward the ini tial
construction cost of the tennis court, as evidenced by a written
document t�Thich shall nct be recorded in rne. Registr=y of Deeds, s-_
- n -
/57
r
lwo�
have the right to share in the use thereof. This right shall run
with the land and shall be transferred with the title to each of
said Lots to the heirs, successors, assigns or grantees of Lot Owners
who so contribute.
3. Any real estate or other taxes that may be assessed
because of the existence of the tennis court shall be paid equally
by all Lot Owners who have the benefit thereof.
E. Easements The owners of each Lot shall have easements
and rights of way over and across land of other Lot Owners as
reasonably necessary to carry out the intent and purpose of each
provision of this Article IV.
Article V. Driveway
A. Construction Grantor shall cause to be constructed, at
the Grantor's sole expense, a hard surface roadway of appropriate
width for the passage of two automobiles, the length and approximate
location of which is shown as the center line of a proposed driveway
on the Plan, such construction to be completed by December 31, 1981.
B. Maintenance The cost of maintenance and repair of the
driveway, including removal of snow and-ice, from Kennedy Road to
a point on the driveway parallel with the most westerly portion of
the most westerly residence constructed on Lots 2 and 3 shall be
borne equally by the owners of Lots 2, 3 and 5, provided however, that
Grantor shall be solely responsible for removal of snow and ice from
the driveway for so long as Grantor ofrns Lot 5, or any portion thereof.
`ft/
M
C. Easements Over Driveway Easements are granted for the
benefit of all Lot Owners, as are necessary to enable such Owners,
and their invitees and guests, to pass and repass on foot or by
vehicle for the purpose of gaining access to their lots, or on foot
for the purpose of gaining access to the Woodland. The(Grantor
shall also have the right to grant easements to utility companies
as necessary for the construction and servicing of utility lines.
Article VI. Miscellaneous
A. Amendment The Restrictions may be amended or repealed
at any time by the written consent to the proposed amendment or
repeal of all Lot Owners. Such amendment shall not be effective
until such time as it has been recorded with the Hampshire County
Registry of Deeds. Notwithstanding the foregoing, no such amend -ment
or repeal will be valid the intent of which is to enable the Owners
to further subdivide their Lots or any of them.
B. Duration
The provisions of this Declaration shall be
in full force and effect for thirty years from the date hereof,
and the term may thereafter be extended as provided by law.
C. Enforcement she provisions of this Declaration are for
the benefit of all Lot Owners and shall run with the Land. Exceot
as otherwise provided herein, any Lot Owner shall have the right to
enforce any or all of the provisions of these restrictions. Any
violation within the Land of any bylaw or ordinance of the City of
Northamoton is hereby declared to be a violation of this Declaration
and subject to the enforcement procedures hereof.
-s-
D. Captions All captions or titles.used in this Declaration
are intended solely for convenience of reference, and shall not
affect that which is set forth in any of the provisions of the
Declaration.
IN WITNESS WHEREOF the said Frederick J. Ostrowski and Alice L.
Ostrowski have set their hands and seals to this Declaration as
of the day and year first above written.
Frederick J Ostrowski
Alice L. Ostrowski
COMMONWEALTH OF MASSACHUSETTS
Hampshire
May 8, 1981
Then personally appeared the above named Frederick J. Ostrowski
and Alice L. Ostrowski and acknowledged the foregoing instrument to
be their free act and deed, before me.
Alan Versgn Notary Public
My commissioriA .xpires June
HAMPSHIRE,SS. MAY 8,1981 at 3 O'clock and 93 minutes, -
P.M.Received and _e tered with Hampshire
County Registry of Deeds, Book 2222.` c:ju3 '
PAG 152, w =:
ATTEST: :.
REGI S r v - - - --
RYAN
ffd MARTIN
COSTELLO
ATTORNEYS ALLISON &.
AT LAW LEITER, P.C.
'HARLES V. RYAN
*--* P HILIP J. RYAN
BRADFORD R. MARTIN, 1R.
MARY K. DOWNEY COSTELLO
DONALD J. ALLISON
BRUCE L. I
JOAN C. S"I?qk*,fR
TIMOTHY J. RYAN
WILLIAM J. CASS
MICHAEL P. RYAN
March 14, 1991
E XPRESS MAIL
Robert J. Pascucci,
Northampton Zoning
City Hall
210 Main Street
Board Secretary
Board of Appeals
Northampton, MA 01060
RE: VARIANCE APPLICATION
588 KENNEDY ROAD, LEEDS, MASSACHUSETTS
FREDERICK J. and ALICE L. OSTROWSKI
Dear Mr. Pascucci:
Suite 2500 Bay Bank Tower
1500 Main Street
Post Office Box 15629
Springfield, Massachusetts
01115 -5629
Telephone (413) 739 -6971
Telecopier (4 13) 739 -1441
Pursuant to our prior conversation, enclosed herewith please
find five copies of our Memorandum with regards to the variance
application at 588 Kennedy Road, Leeds.
It is my understanding that you will forward a copy of this /
Memorandum to Attorney Verson upon receipt of his Memorandum which
you are also expecting to receive on March 15, 1991, and will
forward to me a copy of Attorney Verson's Memorandum.
Thank you for your consideration and assistance in this
matter. If you have any questions or problems, please feel free
to contact me at your convenience.
Very truly yours,
Br ce L. Ee �e er
BLL /lg
o 1� c
Enclosures
RYAN
MARTIN
COSTELLO
(ARLES V. RYAN
HILIP J. RYAN
BRADFORD R. MARTIN, JR.
MARY K. DOWNEY COSTELLO
BRUCE L. LF
JOAN C. STEM
TIMOTHY J. RYAN
WILLIAM J. CASS
ALLISON &
DONALD J. ALLISON
MICHAEL P. RYAN
ATrO"IEYS
AT LAW LEITER, P.C.
March
14, 1991
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
City of Northampton
City Hall
210 Main Street
Northampton, MA 01060
RE: VARIANCE APPLICATION
588 KENNEDY ROAD, LEEDS, MASSACHUSETTS
FREDERICK J. and ALICE L. OSTROWSKI
;Dear Sirs:
Suite 2500 Bay Bank Tower
1500 Main Street
Post Office Box 15629
Springfield, Massachusetts
01115 -5629
Telephone (413) 739 -6971
Telecopier (4 13) 739 -1441
Pursuant to your request following the initial hearing on the
above- referenced variance application, the following is a memorandum
in opposition to the granting of the variance submitted on behalf of
]Kennedy Road property owners Garson and Nancy Fields, Robin Fields,
Richard and Marie Aquadro and Russell and Priscilla Christenson.
I. FACTUAL BACKGROUND
On May 8, 1981, the Ostrowskis purchased from Charles and
Dorothy Nehring an approximately 90 acre parcel of land situated
on the westerly side of Kennedy Road. At the time of the
purchase, the parcel had approximately 914 feet of frontage on
Kennedy Road. On the date of the purchase from the Nehrings,
May 8, 1981, the Ostrowskis caused a plan to be recorded at Plan
Book 117, Page 39 in the Hampshire County Registry of Deeds
which divided the property into five lots. A copy of said Plan
has been provided to the Zoning Board of Appeals. Lots 1, 2, 3
and 4 each had 175 feet of frontage on Kennedy Road in
accordance with the minimum frontage requirements for lots in
the rural residential district in which the subject land is
located. Lot 5, in which the Ostrowskis retained ownership, had
frontage access of 214 feet and was the middle lot for frontage
purposes on the plan. The 214 foot frontage narrowed down in a
funnel shape to provide a 50 foot wide section between Lots 2
and 3 and then opened up to include the remaining 73 acres on
the original parcel. Lots 1, 2 and 3 were all conveyed to other
parties on this date (Exhibits A, B and C) and Lot 4 was also
eventually sold to a third party. Access to the homes built on
Lots 2, 3 and 5 was achieved by means of a common driveway which
entered Lot 2 from Kennedy Road and curved through that lot
until eventually reaching Lot 5 and the Ostrowski residence at a
distance of approximately 1,200+ feet from Kennedy Road. There
r..-�
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 2
, .IV
is no physical access for vehicles to Lot 5 through the 50 foot
wide connector between the front and rear of the lot.
The Ostrowskis, also at the time of purchase, executed and
recorded a Declaration of Restrictions and Easements, a copy of
which is attached hereto as Exhibit D. The Declaration
restricted the uses of Lots 1, 2, 3 and 4 to a single family
dwelling house, together with garage and appurtenant structures
and stated that "if otherwise permitted by law" two single
family dwellings may be constructed on Lot 5.
Article V of the Declaration referred to a common driveway
serving Lots 2, 3 and 5, and stated in pertinent part that: (1)
the Ostrowskis would cause to be constructed a hard surface
roadway with appropriate width for the passage of two
automobiles, (2) that the cost of maintenance and repair of this
driveway, including removal of snow and ice, from Kennedy Road
to a point on the driveway parallel with the most westerly
portion of the most westerly residence constructed on Lots 2 and
3, would be borne equally by the owners of Lots 2, 3 and 5, and
(3) provided further that the Ostrowskis would be solely
responsible for the removal of snow and ice for so long as they
owned Lot 5.
An easement was also granted for use of the driveway to
enable lot owners, their invitees and guests to pass and repass
on foot or by vehicle in order to gain access to their lots or
on foot for the purpose of gaining access to the woodland. The
term "woodland" is defined in the Declaration as the
approximately 70 acres of woods and brush located on Lot 5 and
no closer than 400 feet to any residence constructed on Lot 5.
The Ostrowskis now wish to build a second single family
residential home on Lot 5. In order to do so, they have
requested the issuance of various special permits from the
Northampton Planning Board, including the creation of two flag
lots which do not have the required access frontage, access
width or access roadway, a special permit under Section 6.12 for
vehicular access to the new house lot over the side lot line,
and for the use of a common driveway in connection with the new
house lot.
The Ostrowskis are also seeking a variance from the
provisions of Section 6.12(a) of the Northampton Zoning
Ordinance in order to allow a common driveway to service a total
of four, rather than three, houses. This variance application
is the subject matter now before the Zoning Board of Appeals.
L ..i`
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 3
II. ARGUMENT .
The legal prerequisites to the granting of a valid variance
are contained in G.L. c.40A, §10 which recites that in order to
grant a variance, a permit granting authority must specifically
find that "owing to circumstances relating to the soil
conditions, shape or topography of such land . and
especially affecting such land . but not affecting generally
the zoning district in which it is located, a literal
enforcement of the provisions of the ordinance or by -law would
involve substantial hardship, financial or otherwise, to the
petitioner or appellant and that desirable relief may be qranted
without substantial detriment to the public good and without
nullifying or substantially derogating from the intent or
purpose of such ordinance or by -law." In order to validly grant
a variance, all of the statutory prerequisites must be met. It
is a well established principle in Massachusetts zoning law that
"no person has a legal right to a variance and they are to be
granted sparingly." Damaskos v. Board of Appeals of Boston 359
Mass. 55, 61 (1971); Gordon v. Zoning Board of Appeals of Lee
22 Mass. App. Ct. 343, 349 (1986).
The test to be applied by the Zoning Board of Appeals in
evaluating the application is not whether the variance is simply
"desirable," Martin v. Board of Appeals of Yarmouth 20 Mass.
App. Ct. 972, 973 (1985), but whether it is justified, that is,
whether there is evidence to show that the statutory
prerequisites have been met. Dion v. Board of Appeals of
Waltham, 344 Mass. 547, 556 (1962); Warren v. Zoning Board of
Appeals of Amherst, 383 Mass. 110 (1981); Gordon v. Zoning Board
of Appeals of Lee supra. The Supreme Judicial Court "has
repeatedly held that no variance can be granted unless all of
the requirements of this statute are met." Warren v. Zoning
Board of Appeals of Amherst 383 Mass. 1 (1981). Application of
the statutory prerequisites to the variance request at issue
herein should result in a finding by the Zoning Board of Appeals
that a variance cannot legally be granted since all of the
statutory prerequisites cannot be met as will be shown by the
argument herein.
A. THE RELIEF REQUESTED IN THE VARIANCE APPLICATION
CONSTITUTES A SUBSTANTIAL DEROGATION FROM THE INTENT AND
PURPOSE OF THE NORTHAMPTON ZONING ORDINANCE
The Ostrowskis' application for a variance permitting
four lots to be served by a common driveway in derogation
of the intent of Section 6.12(a) of the Northampton Zoning
1 1%WW
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 4
M
Ordinance, in conjunction with their attempt to create
"flag lots" pursuant to Section 6.13 of the ordinance
constitutes a substantial derogation from the intent or
purpose of that ordinance.
One of the purposes for the common driveway limitation
is public safety. This concern is evidenced by the
requirements of Section 6.12(c) which provide that
driveways shall be adequate "to provide for the access and
turnaround of vehicles including moving vans, ambulances,
fire and police." The driveway currently serves three lots
and extends approximately 1,200 feet from its intersection
with Kennedy Road to the point where it reaches the
Ostrowski property. The proposed addition for the new flag
lot would extend this driveway another 600 feet making it
more than 1,800 feet in length. The inherent
unreasonableness of this arrangement is exemplified by the
requirements of Northampton's Subdivision Control
Regulations which limit dead end streets and cul de sacs,
even when laid out pursuant to rigorous design standards,
to a maximum length of 1,000 feet.
Discussion at the last hearing before the Board
involved the issue of whether the driveway would cease to
be a "common" driveway at the point where it left the
present Lot 5 to travel the additional 600 feet to the
proposed new flag lot house. This discussion, however,
concentrating on ownership rights in stretches of the
driveway overlooks the public safety concerns in the
limitation of access to only three lots. The effect of the
grant of this variance would be to create a driveway more
than one -third of a mile long to the point where it reached
the final house being serviced with access. It is this
distance which the fire trucks, police vehicles and others
seeking access to the fourth lot will have to traverse and
is, therefore, the length of the common driveway for zoning
purposes.
Further, the Declaration of Easements and Restrictions
now in effect does not clearly provide for the
responsibility for the maintenance of the driveway access
if the new flag lot were to be established. Currently,
maintenance and repair from Kennedy Road to the westerly
portion of Lots 2 and 3 is to be borne equally by the
owners, with the Ostrowskis responsible for snow and ice
removal for so long as they own Lot 5 or any portion
thereof. The creation of two flag lots, which would occur
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 5
1.011
should the variance and special permits be allowed, will
violate the requirements of Section 6.13(1) of the Zoning
Ordinance which state that "Appropriate easements shall be
delineated on the plot plan and on the deeds to the lots,
including a clear provision for the responsibility for the
maintenance of the common driveway, common utilities (if
any) and snow removal, running with the land." No evidence
of an appropriate arrangement to include the new lot,
redivide maintenance responsibilities, and delineate snow
removal responsibilities among the various parties involved
if and when the Ostrowskis no longer reside on the parcel
has been presented.
The abutting southerly resident adjacent to Lot 5, and
other residents of the immediate area who have standing and
would be aggrieved by the granting of this variance,
respectfully contend that a variance which would allow a
common driveway of this length constitutes a potential
public safety threat to their properties with the greater
potential for a fire, were a proposed new house to be built
this far from the public way. Furthermore, these parties
have a right to rely upon the Zoning Ordinance in order to
prevent further development of property in their
neighborhood in derogation of any requirement contained in
that Ordinance.
The granting of this variance would also derogate from
the intent of the Zoning Ordinance by allowing the creation
of a new lot with an imaginary means of access. The flag
lot access lines as delineated by the petitioners bear no
relationship to the proposed means of access through the
existing common driveway. Just as the proposed access
lines twist and turn, this petition represents an attempt
to twist and turn the intent of the zoning ordinance both
as to flag lots and common driveways. Frontage and access
requirements as a factor in controlling density of
development are appropriate concerns of zoning regulations.
There is also no basis for the petitioner's contention
that the variance requested herein is of a "de minimis"
nature. None of the cases referenced by the petitioner's
counsel in his prior correspondence with the Board are
applicable to the present situation. The applicants are
seeking to avoid zoning frontage requirements by obtaining
a common driveway variance which will result in a long and
indirect means of access to the new lot, as has been
previously discussed. This request bears no relationship
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 6
,
to the de minimis nature of the variance in Josephs v.
Board of Appeals of Brookline 362 Mass. 293 (1972) which
allowed the decrease in the height of a loading bay from 14
feet to 10 feet, or Wolfman v. Board of Appeals of
Brookline 15 Mass. App. Ct. 112 where the variance related
to the proposed dimensional envelope of a building where
porches would extend over a front buffer zone by three and
a half feet and the back of the building would intrude upon
the buffer zone by about 176 square feet at one point and
4.32 square feet at another. Likewise, the petitioner's
reference to DiGiovanni v. Board of Appeals of Rockport 19
Mass. App. Ct. 339 (1984), from which he quotes "where
noncompliance amounts to a matter of inches we might reach
a different conclusion" has no bearing on this matter.
This case does not involve deviations of inches or
square footage from any dimensional requirements. It
involves an attempt to utilize a variance relating to
common driveway limitations in order to avoid frontage
requirements for lots and access requirements for flag lots
and open up an entirely new parcel for development.
B. THE APPLICANTS HAVE MADE NO ADEOUATE SHOWING THAT THERE ARE
CIRCUMSTANCES RELATING TO THE SOIL CONDITIONS, SHAPE OR
TOPOGRAPHY OF THIS LAND THAT ESPECIALLY AFFECT THIS LAND
BUT DO NOT AFFECT GENERALLY THE ZONING DISTRICT IN WHICH IT
IS LOCATED, AND THAT LITERAL ENFORCEMENT OF THE ORDINANCE
WOULD INVOLVE A SUBSTANTIAL HARDSHIP, AS SUCH TERM HAS BEEN
DEFINED IN RELEVANT CASE LAW.
The variance applicants have made no argument relating
to the soil conditions of the land. They argue that the
shape and topography of the land is affected by a
circumstance not generally found throughout the district
because it is a 63 acre site with only 214 feet of frontage
and rises 235 feet in elevation from the road. These
criteria, however, do not create circumstances especially
affecting this land so as to justify a variance grant. The
fact that the remaining Ostrowski land on the original
parcel consists of 63 acres has no relevance to the shape
criteria regarding a variance. The 63 acre "size" of the
lot is a different attribute from "shape" of a lot and is a
consideration which G.L. c.40A, §10 does not include.
McCabe v. Zoning Board of Appeals of Arlington 10 Mass.
App. Ct. 811 (1980). The fact that it is a large parcel of
land does not justify the grant of a variance. If size
were a determinant for a variance, there could be constant
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 7
...01
derogation of the intent of both zoning ordinances and
subdivision control laws whenever variances were applied
for. The Ostrowskis are arguing here that they have one
single family house on 63 acres of land and, because of the
size of this land area, they should be allowed to place a
second single family house on the site. That same argument
could be asserted in order to request the building of a
third, fourth, fifth or more houses on the site and does
not constitute adequate grounds for a variance.
The 235 foot rise in elevation has not been
demonstrated to be a circumstance that is unique to the
Ostrowskis' parcel. Rises in topographical elevation are
common to other parcels in this area westerly of Kennedy
Road along which a ridge line runs, and there has been no
showing that there is some problem created by the rise in
topographical elevation on the Ostrowski property which
especially affects only their property.
The third factor relied upon as creating a shape
especially affecting this property is that there is only
214 feet of frontage on Kennedy Road. That 214 feet of
frontage, however, is not a factor upon which the
Ostrowskis can legally rely in support of a variance
request. When the Ostrowskis purchased the original parcel
in 1981, the Northampton Zoning Ordinance requiring a
minimum of 175 feet of frontage for a lot in a rural
residential zone was in effect and the Ostrowskis knew of
that requirement. They made the decision to maximize their
immediate potential economic benefit from the land by
subdividing their approximately 914 feet of frontage on
Kennedy Road into five saleable building lots - -four to the
front of the property and one to the rear. If they had
desired to build two houses in the rearward portion of the
property, it was easily within their power to do by only
delineating three lots on the Kennedy Road frontage and
reserving more frontage area for access to the rearward
portion of the property. Not having done so, the
Ostrowskis cannot now claim that the fact that they have
only 214 feet of frontage creates a substantial hardship,
financial or otherwise, to them regarding their desired
redivision of Lot 5 which consists mainly of the rear
portion of the parcel.
They knew or should have known in 1981 that by reason
of their conveyance of Lots 1, 2, 3 and 4, the remaining
land would only have the necessary frontage under the
+..1.
Northampton Zoning Board of Appeals
C/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 8
..nd
Zoning Ordinance for one single family home. Any
"hardship" which currently exists in this regard is of the
Ostrowskis' making and could have been avoided in 1981 and,
therefore, cannot be relied upon to support a finding that
there is an unusual circumstance involving the shape or
topography of this land so as to meet the statutory
prerequisite for the granting of a variance. See Gordon v.
Zoning Board of Appeals of Lee 22 Mass. App. Ct. 343,
350 -351 (1986).
The Gordon case involved an eight to nine acre parcel
of land having 600 feet of frontage on a public way in the
Town of Lee. The land was subsequently subdivided by the
purchaser to maximize the lots which could be developed on
the public way and left inadequate frontage for development
of the rear portion consisting of five -plus acres. The
Court overruled a variance which was granted so that a
house and garage could be built on that rearward portion of
the original parcel. The Court found that due to the fact
that the conditions of the property regarding shape were
created by the purchasers in 1976 for their financial gain,
they knew that by reason of their conveyances, the
remaining land would be nonconforming for residential use
in the future. Until their conveyances, there was nothing
unusual about the shape of the tract in its entirety and
any hardship was of their own making and could have been
avoided in 1976. The situation is identical to that
involved herein.
The Ostrowskis' argument that without the grant of
this variance they will be unable to develop 57 acres of
land is likewise without merit. The original Lot 5 from
which they are seeking to carve out a new flag lot
currently contains a single family dwelling and appurtenant
structures. The zoning by -law has not deprived the
petitioners of the use of their land. It may be inferred
that it would be of greater advantage if they were
permitted to erect a second house on this rear parcel, but
the Courts have specifically refused to construe the use of
the words "financial or otherwise" in G.L. c.40A, §10 to
mean that a deprivation of potential advantage constitutes
a "substantial hardship." Bruzzese v. Board of Appeals of
Hingham 343 Mass. 421, 424 (1962). It has been further
found that "The fact that a governmental regulation may
deprive an owner of the most beneficial use of his property
does not create a hardship if a single family residence,
conforming to the requirements of the regulation, can be
Northampton Zoning Board of Appeals
c/o Robert J. Pascucci, Board Secretary
March 14, 1991
Page 9
constructed on the property." Kirkwood v. Board of Appeals
of Rockport, 17 Mass. Appt. Ct. 423, 431 (1984). In this
case, the Ostrowskis have been able, within the applicable
confines of the Northampton Zoning Ordinance, to utilize
Lot 5 for a single family residence.
III. CONCLUSION
The burden rests upon the person seeking a variance to
produce evidence that the statutory prerequisites have been met
and that the variance is justified. Since the requirements for
the grant of a variance are conjunctive, not disjunctive, a
failure to establish any one of them is fatal. Kirkwood v.
Board of Appeals of Rockport 17 Mass. App. Ct. 423, 428 (1984)
Based upon the reasoning contained in the argument herein and
the material facts concerning the property for which the
variance has been requested, it is respectfully contended that
all of the statutory prerequisites cannot be met in this case
and the Zoning Board of Appeals should, therefore, deny the
issuance of the requested variance.
RESPECTFULLY SUBMITTED,
GARSON and NANCY FIELDS,
ROBIN FIELDS, RICHARD and
MARIE AQUADRO and RUSSELL and
PRISCILLA CHRISTENSON,
By:
Bruce L. Leiter, Their Attorney
BBO #292800
Ryan, Martin, Costello,
Allison & Leiter, P.C.
P.O. Box 15629
Springfield, MA 01115
Tel. (413) 739 -6971
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R!rederl.ok ft4retrowe3i and Alias L, Ostrowski, husband also 4ife, EXHIBIT A
Of RRorthasptoa, • .• - Hmpshire County,bumchuse"s
Ad - M X for 000alduadma paid, and is to maddemdion Of Twenty XL&t nousand
Dollars ( =28,000.00)
araatsto Man Verson and Nola Verson, husband and rite, as tenants by the c
entirety
of 44 front 4trest, Aorthampton, Massachusetts vkh marmants n mnents
3 60isR uk
mow. r ..esivaw tt owl
A certain tract cm parcel of land located on Kennedy Read, Northampton,
leads), Fampshire Cotmty, shorn as Lot 0 1 on a plan entitled "plan Of land
In fforthampton, Rlassachueetts, aurreyed for Frederick J. Ostrowski" dated April 24,
l9Mt, by Almer Hurtlay, Jr. sad Assool.ates, Inc., which pian is recorded in Rtampahtre
Ragiatry of Deeds Men look 11J , Page 34 .
Said parcel is more particularly bounded and deaoribed as follows
1le5Ln dm$ at an isoa pin is a stone Wal; on the westerly side of Kennedy
a load and at the southeasterly corner of the deearibed premises;
Q Thence loath di 471 29" West a distance of x1.76 tact to a point,
Thence South l0 11 44" West a distance of 3 feet to an iron pin,
Thence North 04 27' 44 West a distance of 175.00 fret to on Lm pin,
Thence Worth SQ 43 3 7" meet a distance of 400.00 feet to as iron pin in
the aforesaid stone Malt,
Thence south 00 26 25" BOA alaa6 the adbresaid $tone Wau a distance
of 175.00 feet to the im ptn at the place of bsgim%i.ng. Containing 1.S88 acres,
Being a portion of the praadses conveyed by Charles E. WshrinS and Dorothy
p N. Wehrind to the grantors by deed Rated May d 19$1, and recorded herewith to
"ohire RsS;istry of Deeds.
This deed is subject to the "Dealaration of Restrictions and Sseements"
made by lroderiok J. Oatrowski and Aiwa L. Ostrowski dated May 8, Ift and
recorded in Kmpshire Ingtotry of Deeds.
63.64fa
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• �l2ii!!A/ w..MYl:....NNlww�d ad a w.IM.wN..w.y•
Alice L. W03"Otfsk� w•"N -..-�.
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sloelt t i� f>lq. P.M. looldo i1sd� y
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yederick J• Cstrowski And Altos L. Ostrow", husband end Arita,
...SEE j60
of Northampton, • + warty, M&NA&W* er
�r cwe+ss+►wr , Eon con ideradaa paid, tad In 1U mWdwadon of PlAy Thousaftd Do13.Ara p.� j
(s ,000.00)
gram to C. Ridhard Nit14klay and JoAnn Ft Adacy, husband eM wire, an joint tv=tse
and not an tenants by the antinty
of 135 Vernon ftroat, Northampton, Hasseahwet Wkh aarraniv Koarttaass
the ised in Northampton (Lords), Hamp@hire County, i'tassachmotte, shown as Lot d'
on a plan untitled "am of Land in Northampton Maaoachusette, S urveyed for
rlroduriek J. Oetrowaki", dated April 24, 1981, by Almor Hurtle ' Jr. and Assoelates,
Ina., whlah plan is reaord•d In 11ampshira Registry of Deeds, ar, Book W? , Page 3 4 •
Said pareal is more part c4Ar1,y bounded and "scribed as tollowst
BegWing at as host pin to ba see on the Westerly aide of Kennedy Road, and
at tho Northeasterly oornor of the lot heroin described;
Thonco pm000ding South 04 26' 2 5 " Fact slang the Maotarly aide o f said
Kennedy Road t distanoo of one hundred seventy -ttve (175.00) Cost to an iron pin;
Thence Boudth k 23' 30e West a distan of two hundred (2D0. feet to an
+t iron pin to be set;
Thence South 04 26' 25" East a distan of ens hmdred SLAY Ave and
twenty -seven one- hmdredthe (165.71) feet to an Iron pin to be not;
Thanee youth So 23' 30" Koet a distance of eight hundred (900.00) feet to
M
�. an iron An to beset
a Thence North 04 26' 35" west a diatanoa at three hundred sixty -khrea and
thirty -ALne 0011AVAdradths ()63.$9) fast to an iron pin; the Zest flour course@ having
y tear along other land now or forme y of Frederick is Ortrowaki and Alice L.
a
4 Os4r+owaki.; .
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Thoncs North 40 45' 42" 1&$*# a distanes of one hundred Seventy -eight and
twenty one -hundredths ( feat along land now or fomerly of Rusasll
Christonem at ux to an heft Piet located in the Westerly end of A stone wall
at land now or fortaarly of Richard Co Aquadro ee ual
Thence North 71 46 26" East along said stone wail and $aid lead of Aquadra
a distance of t'iva hundred ninoby and fire one- 6adredtbs ($40.45) feet to as Iron
An to be cot-,
Thence North If M' S2" East a distance of one hundred eleven and Aftyiix
one- hWulve (3.31.56) feet to an iron pin to be tee;
Thencaq�5 33' 35" rift a distance of ono hundred twenty (120.00) feet to an
LM Ain Oft the WeAvIr side of said Keec W Road and at the plane of herinnlaj, the
last two course@ being along lot 4 w "m on Laid plan. Containing 7.500 aurae more
ov
Being a portion at the preadeas cwrgod by Qtarles X. Nehring ens Dorothy N.
Wehring to the grantors by deed dated Nky a, 1993. and recorded Asradth in Rupshire
Registry of Deeds.
BW&ct to and together with a DeelaralUn, of Restrictions and ltaemmts dstad yy►
At 19Ri, by lroderiek J. Oetroweld and Alive L• Osbj4ftv4, recorded in the Nieapahiare
00unt3W 24 5ise17 Of Deeds.
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Frederick J17sty ki sand Alien L. OA,—k , hasband an • EXHIBIT C
of Northampton, "shire county, Mue&nkth
nwmsk for oowldeestbn pdd, asd b " coaddemdoe of Fifty Thousand Dollars
150,000.00)
X10 TV" B. oedenell, Jr.
of 446 Chesterfield 11o4d, Northaslpton, Massachusetts vid, taa=tantg ra tnunts
tYe:tmdftn
(D EW- sM armAtowm U - F)
The lend $n Northampton (Leeds) iampshire County, Massachusetts, shown
as Lot 0 3 on a plan entitled "lrlan of land in Northampton, Massachusetts,
s:nvOYed for fsedsrSak J- Ostroweki," dated AprU 24 1981# by Almer Huntley,
Jr, and Assoolateep Inc. which plan is recorded in Hampshire Registry of Deeds
Plan Dock I V7 , Page 1 .
Said parcel is more particularly bounded and described as fonowst
Negro Sing at sn iron An in A Stang well located on the westerly side
M of Kennedy Load and at the bu- thaaeZerly corner of Lot # i on the aforesaid
plan of lands
�• Thence South 80 0
43' 37" West along the northerly bmmdary of said Lot d4
a distance of 400.00 loot to an iron pint
Menge Qeuth Oe 27' 44" raft along the westerly boWAMI of the afere—
►� amid Lot In a distance of 175.00 feet to an iron pint
Thence South 10 ll' 44" west a distance of 600.05 feet to &A iron pin,
Thence North Ok 26' 25" West a diftanee of 9A9.72 feet to an iron pins
iitea,se North SO 23' 30" East a distancs of 1000.00 feet to an iron pin
located in the aforesaid soon wLU On the westerly side of ImmOdy Rood►
Then" mouth 04 26 25" East along the stbresa3d Stang wall a distance
Of 175.00 feet to the iron Am at the place of beginning. Oontsining 6.372 cares.
Being a portion of the premises conveyed by Charles IL Nehring and Dsrothy
N, Ishring to the grantors be dead dated May 8, 199 and recorded herewith in
Registry of Deeds.
3lds deed is sub4eut to the "Deglsration of Isstriotions and Eseemertts"
made by Pederick J. OstranK and Alice L, Ogtrmki dated May r, 1991 and
re orded in Hampshire Registry of Deeds,
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U362 MYMq"VIAM WARRA M Of IR49 IIAwe F91100 014
Frederick J17sty ki sand Alien L. OA,—k , hasband an • EXHIBIT C
of Northampton, "shire county, Mue&nkth
nwmsk for oowldeestbn pdd, asd b " coaddemdoe of Fifty Thousand Dollars
150,000.00)
X10 TV" B. oedenell, Jr.
of 446 Chesterfield 11o4d, Northaslpton, Massachusetts vid, taa=tantg ra tnunts
tYe:tmdftn
(D EW- sM armAtowm U - F)
The lend $n Northampton (Leeds) iampshire County, Massachusetts, shown
as Lot 0 3 on a plan entitled "lrlan of land in Northampton, Massachusetts,
s:nvOYed for fsedsrSak J- Ostroweki," dated AprU 24 1981# by Almer Huntley,
Jr, and Assoolateep Inc. which plan is recorded in Hampshire Registry of Deeds
Plan Dock I V7 , Page 1 .
Said parcel is more particularly bounded and described as fonowst
Negro Sing at sn iron An in A Stang well located on the westerly side
M of Kennedy Load and at the bu- thaaeZerly corner of Lot # i on the aforesaid
plan of lands
�• Thence South 80 0
43' 37" West along the northerly bmmdary of said Lot d4
a distance of 400.00 loot to an iron pint
Menge Qeuth Oe 27' 44" raft along the westerly boWAMI of the afere—
►� amid Lot In a distance of 175.00 feet to an iron pint
Thence South 10 ll' 44" west a distance of 600.05 feet to &A iron pin,
Thence North Ok 26' 25" West a diftanee of 9A9.72 feet to an iron pins
iitea,se North SO 23' 30" East a distancs of 1000.00 feet to an iron pin
located in the aforesaid soon wLU On the westerly side of ImmOdy Rood►
Then" mouth 04 26 25" East along the stbresa3d Stang wall a distance
Of 175.00 feet to the iron Am at the place of beginning. Oontsining 6.372 cares.
Being a portion of the premises conveyed by Charles IL Nehring and Dsrothy
N, Ishring to the grantors be dead dated May 8, 199 and recorded herewith in
Registry of Deeds.
3lds deed is sub4eut to the "Deglsration of Isstriotions and Eseemertts"
made by Pederick J. OstranK and Alice L, Ogtrmki dated May r, 1991 and
re orded in Hampshire Registry of Deeds,
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ca V00 EXHIBIT
RATION
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�i tldo Daaiaratian of Reetriation■ end >a+aserosnts se wad• tkf.e
s idhth da1l e! 19ay_ F oderlek J. Qatro•nId and Alias
�pstrev"I of l07 !front Street, Northampton• Ma■saahusetta (here-
' star banter ") me the Olmor of certain raai e located on
KacMeU Mod, Northampton, MaaaachwIttar wore psrticularlr
dosaaibed 'LL Article II O f this Dealoration (hereafter "I nd ").
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T . joaral m0i
xi is the donor'sa intention of the amwtor to divide the Land
into Separats Iota !or rsdde ntial parposeo while Ani 4nr the
diaroson or lateration of the present state of t he tend; to
,uintain the mW orlty or the land that presently is open fields
j s�w►.r a.
o pen fielder and to hare au c"ners of some portion of
the land share in the owerient of the area of open field on the
' ge
� aaster�ir portion
or the Lend near 1Kennedy 11pad and the large aarya
of W094snd on the westerly portion Of the Lend, to the ez<tent that
the Sams is consistent with Lhe privacy of each lot caner snd the
k eadusive use and agyoyaent br soah omor of the area aQaceA to
their res iden c e, The WoVisisns Of this Dwisration shall be
UVIC tool and oonstraed to saoo*ish these geral obSoetiwe.
Zrary pwohaser of a portion of the Land, and the Orantor,
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.doe& &pee to be bourid by and recd» the benefit of the previsions
Of the D.aiar U". MY fig* created by this Declaration to naey
trayel or walk Woo, or *Noy the psopsrly of another be
eenstrued as M ea*emeMt0 rLowt•of-e,Y and covenant which rt�a
w ith the lend benefited thereby, and said rights @hall be trenafersed
bQ ♦M hetss� eao9aoo0rd� acai�►e or `ranteoa of each OMners
A, The term "La>Al Shall Mena all the real astats
pwohated by tM Grantor fins Charles E. Nohrind and AorOthlr K.
i
Nehrin6 blP wUVMtY deed 4494 MW a, 14d1r and raoorded in Hemp -
4 ire ROA Mrq/ of and is located on the wasterU aide
MFVAgs&&vwgtgj end oonaist s of apprex
1
'lmete3�r
-*L um. The NetarlY poltion of acid land located �
within 1000 tact from xonnody Road is shown an a Finan of land 1
entitled "Land in Northamptonr Naesaohugutt■ surveyed for Frederick (!
J• 04trowskV dated April 24, 19Mr arA pretJered by A1mer Huntley, �
,fir, and A*areist in*.. whioh—RIM-48 reeorded in Naupshire
Radebry of poeds Aloe book tt� , Pale �� •
j&, .W The bus a" •"`�eha xsaa the plan of land refereed
to hervirabovee
G6,p &W The term "Omww aha11 Sean the pars" persons or
1401 snutt which has the right to hold title to real prOpesty'
whose iUte"A or int"%Ag is the Land &"ftV0ee fee simple absolute.
D6 the teem "Lot" shall Sian$ with reference t Lot* it
w an tM plant each portion or pared of 1=4 shown as a
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+� AliRa L. Qats:�e�" iasaladi+►p the p0
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Rennedp Mad. nrd also SAatudini all the remaining portion of
the Land W% sown on the Pleas owsieting of Vim 3CL taY �3
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The teas "impeorinent" SMU Include
t buildings, Cr :buildings, camps eerports, drsrewayat "LUD
stairs, decks, p016e9 terraces6 prdons, fances, ssMming pools
and au str ures of e*e17 1d.nd and tYpa.
} Zs�+ • The tabu "opw Land" shall moan that portion
of tbs Land :r. hots d. 3 and. S lYL+g Athin 5W fact of KWMWY
Mad, mcept for those stage desipated in thla Declaration for
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� a Prdsn are+ for a teresis eourb, and for the oonstruotSon of a
s dtrlTeMSrT, the asuster Sine o f which shall be approAnatell► as shown
on the Plain
9" - gnan. Th two "woodland" shall NOW the appi'oxi-
mAdy 70 sates of woods and brush legated on Let S and no closer
than h00 f0A to WW reaidence oonstruoted on Lot S.
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DoproTonent other than 0" einf1e
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fad dw :ind h todetMr with a garage for `hs storase of
' no't MOrf than three prltata automobiles and such other appurtenent
l @%rw% res as am eonsis ma kith the ROAN10e3 of tMN 0e010,ration
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and coav"eat to the use of the pr■adees for A development of this
character shall be constructed or placed upon
Notwithstanding the foregoing, it otherwise permitted by law, two
s ingle- fawd.W dwellings mq be sonstracted oa IAt 5, bt* Let S_
ehmU otheswAss be suNto to Wu restrigUons contained in this
p aragraph.
AL_kj j nn = & po D*mvemmt of any kind ehall be
erected or placed an the Open Land, and that portion of the Open
Land that is open fYeid at the date or this Declaration shall
romuain as such and be mowod twice, but not more often, each year,
in the evem that it is necessary to pay for such mowina, the coat
thereof shall be barns equally by the owners of all five lots.
C� tip o �e ■e . Tress may be planted on the. Open
xand onl v&tMn 25 feet of Kennedy Road, arc an Lot a north -
wsaterly of the dr Ymsy but no sLoser to ;woody Road than 230
test, pa"Uod that taws northwesterly of the driveway shall
be reasonable in nmmber and shall not prev" mowLU fm being
dons.
D. r Cutt inr en Nee rA. No eels hamAing of forest
.,
products shall be allowed an the VooCx4, and all tree removal
shall be salectiva In nature and cooduored in aeeordente with
good forestry ;mctiees direated at iqrovW the gwUty of the
wooded arcs.
,
• AfW tending araogd on the ?end shall be open
wire or mu ' rom:Lng.
F. \Rrw■ tlfderrre a,A� Telephone geld sleetrLoal lines, end
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other Cables, wire$, MAI s or piyes Of MW kind installed attar
the data of this Declaration shall be located mdsrgromM or other -
wise hidden from vier.
dam_ No refWa, rubbish, wtdc%o parts or debris
of arty kind shall be permitted to•eQQ6ildate upon any Lot which
will sender any such Ut or any portion thereof unsanitary,
unsightly, offensive or detrimental to any other Lot, and no
activity, structure or device shall be constructed, built or
maintained wh is or may be offensive or detrimental. All
unresistered motor nehiclas shall be gassed or otherwise hidden
from view, No above - ground pool shall be erected on the Land,
Ali dojs shall be maintained or restrained in such a manner as
M% to became a nuisance to other Lot ewners.
t . Late 1, 2, 3 or 4 shalt not be
subdivided to increase the mbar of permitted reddeaeee, .
No motorised recreational
reldel*a shell be operated on the Lead.
A. Lend irLBpnt That portion of Lot 3 and Lot 5 that lies
u tUn $50 feet of Kennedy Road, and that portion of Lot 2 that
lies southerly-of the ravine or easterly of the driveway to be
eonstsueted as shown on the Ilan say be used by all Lott Owners
for volldng, dttiq, piwdotdng, and like activities,
provided that such uses or activities do not interfere with the
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• prLtir,1' yr %he « are of rate 2 And S. � -P A a
a. Yccdland The Woodland `W be used by all Lot Owners
for hikingf akLing, fishing or like aobiwities (esaludina hvnting)
that do not interface with or invade the privacy of the Owner of
Lot S.
. Notwithatanding other provisions in this D"laratioa
V9 the oentrary, the portion of Lot 5 that Use wit hin 125 feet of
lamely Road may be used by all Lot Owners for a vegetable and
flower garden providod however that the northerly 75 feet shall be
used exclvsivey by the ownar of Lot t. Any portion of the garden
area not utiliasd in any given season for a garden shall be subyact
for such period to the rsatriations on Open Land.
�. T�nnie act
1. NotwithAMUng other provisions of this Declarati
to the contrary, if the Owners of three Lots agree, one clay tennis
eowt and randng may be built and araeted in the area that is north -
CL
a wyimh Lot 3 1 q no a further
easter>,y of Aso pond fit► r �
than 225 feeb &L cad n9hoser than X feet to the northerly
boundary of Lot $,u that boundary mists in the area of tho Land
b eing roforrod to. The smat. location of the tannic court wdthia
the above- d000ribod area shall be dot*rWmod after consideration of
the difnemmes of Construction and uintenanee of the tennis court
and the aesthetic preference@ of 41 Lot Owners.
2. Lech Lot Owner who contributes toward the Initial
oonetruebion cost of the tennis court as evidenced by a written
doement which shin not be recorded is the Registry of Made, shall
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haw t two U the use thereof. This ri,� shall rum
.dth the land and ■hall be trwaterred with the title to each of
said Lots to the heirs, successors$ usi gne or grentsee of Lot Owners
who so aontributs.
�. Any real estate or other taxes that may be assessed
beeause of the existence of the townie court shall be paid equally
by all Lot osm•rs who hew the benetit thereof.
j The owners of each Lot Shell have easements
and rights of way over and across land of other Lot Owners as
reasonable neeeseary to carry out the intent and purpose of each
provision of this Article 2P.
zjwar
A! natnlitleen, grantor shall aausS to be e10404ruct2d, at
the Qrantor Sole expense, a hard Surface roadway of appropriate
width for the passage of two automobiles, the length and approximate
location of which is shown as the center line of a proposed driveway
on the Flan, such construction to be completed by December 31 19ft-
s ce . 7he seer of maintenenos end repair of the
drivewy, including removal of snow snd.toe, from Kennedy Road to
a point on the driveway parallel with the most westerly portion of
the most wester?,,ir residence constructed on Lots I and $ shall be
borne equally by the owners of Lots Z, 3 and S, provided however, that
Drafter shall be solely responsible for removal of snow and Sot Iron
the driveway for So long as Grantor owns Lot ;, or any po=tion thereof.
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n TAM Over tfrivrwn� rasoments are granted for the
benefit of All Lot Osnlera, as are 11e0e80arY to enable awh Omer•,
and their jWtaes WA gugats, to page and rapes# an teat or br
vohiols for the purpose of gaining access to their lots, or on loot
for the popoas Of gaining access to the Woodland. The Grantor
shall also have the right to grant easements to Mility compani
as neoeasaay for the construction and servicing of 1t4 lines.
A6i la Wll uuWj =
nt . The Restrictions may be amended or repealed
at my time by the written consent to the proposed amendment, or
repeal, of all Lot Owner Such amendment shall riot be effective
"U swh time as it has been recorded kith the Hampshire Camty
Registry of Deede. NotWdthstuAinN the foregoing, no such smandmant
or repeal All be valid the intent of whiah is to enable the Owners
to further subdivide their Late or any of them.
W1�1_ The provisions of this Declaration shall be
in full tbrco and effect for thirty years from the date hereof,
and the %ors• my thereaMor be o4anded as provided by lax.
C._ Ag 2ffak s The provisions of thLe Declaration are for
the benefit of all Lat Owners and *hall run with the Land. Except
as otherwise provided herein, u W Lot Owner shell have the right to
BOOM MW or all of the provisions of these restrictions. My
violet N Within the Land of my bylaw or ordinance of the City of
Northepaon le hareby declared to be a violation of this Declaration
and suWa t W the antgreassat procedures hereof.
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`... CagUons AU caprioea or titlee wed '. Declaration
are intended enla y for Convenience of relerenee, and shall not
attest %hat rhl,Ch is e st forth in any of the provisions of she
!leclaration.
I1'f HZ'T= WHEP ? the said Frederick J. Ostrowski and AUce to.
OstrowsK hsee set their hands and seals to Me Declaration as
of the day and Peet !brat above written.
i+�edsrtek J Ostrowvkl
1eAI a L. Oltrows ki
QOMagbttitMTH OF MA$SAC,HUWM
�i
May •, 1981
'then pwswaUy appeared the above named AmWarick J, Ostrowatd
and Mi L. Ostruwakci snd a*wwled;ed the foregpin4 Instrument to
be their free act and dead, before me,
... an VON= , h *otary � PubrU
Yb' coea IkAoft se Jun 1, 1981.
�N#lR �s�• Ilsil'1o1iet et 3 and di Munees,
:Dtxj a"ved 4 Ad 4VOC 4 pith ltanpahise
d" ><pietsy of aeede� am* Ziis
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CITY of NORTHAMPTON
OFFICE of PLANNING and DEVELOPMENT
MEMORANDUM
TO: Kathleen Fallon
FROM: Bob Pascucci for the ZBA
SUBJECT: Ostrowski Variance
DATE: March 15, 1991
FILE:
Attached are the Application, five pages of minutes of the
February 20th Public Hearing, a copy of Atty. Leiter's exhibit,
Gordon v. Zoning Board of Appeals of Lee Atty. Verson's memorandum
as requested by the Board, and Atty. Leiter's memo. The Board has
requested your comments. Thankj.
City of Northampton
MEMORANDUM
TO: Zoning Board of Appeals
FROM: Kathleen G. Fallon, City Solicitor 0
:SUBJECT: Ostrowski variance
DATE: April 11, 1991
Law Department
I have reviewed the memoranda submitted by Attorney Verson on
behalf of the Ostrowskis and Attorney Leiter on behalf of the
neighbors.
As you know, in order to obtain a variance, the applicant must
satify the Board of Appeals that the three criteria for a variance
are met. As set forth in Section 10 of Chapter 40A these are: (1)
that the variance is requested due to circumstances related to the
soil conditions, shape, or topography of the land or structures
which affects such land or structures but not the zoning district
in general; (2) literal enforcement would involve substantial
hardship; (3) relief may be granted without substantial detriment
to the public good or nullifying or substantially derogating from
the intent of the ordinance.
Strictly speaking, the Ostrowskis do not appear to meet the first
requirement for a variance. They are claiming that the shape and
topography are the basis for the variance. The shape of the parcel
is, however, self- created. The Ostrowskis had owned a much larger
parcel with considerable frontage along Kennedy Road. It was their
choice to divide the property into its current configuration. I
must agree with Attorney Leiter's interpretation of the case law
that this self - imposed situation does not create legal
justification for a variance.
Attorney Verson seems to be saying in his memorandum that the
Ostrowskis' situation is similar to that found in Paulding v.
Bruins 18 Mass. App. Ct. 707. I do not find the cases to be
similar. In the Paulding case, the lot in question was created
many years before any zoning went into effect. There were no
restrictions on the shape of lots created at the time of creation
of the lot. The Ostrowskis created this lot under zoning that
clearly did not allow more than one building lot on the property
retained by the Ostrowskis.
'`r
The creation of a flag lot
permits the division of the
nature of the problem. In
configuration of one of the
is contrary to the intent of
ordinance which the
lot does not change
any case, it is my
flag lots requested
the ordinance.
Ostrowskis claim
the self- created
opinion that the
by the Ostrowskis
As for the topography of the parcel, the ridge line which creates
the rise in elevation between Kennedy Road and the Ostroskis' back
land runs a considerable distance through that area. It does not
affect the Ostrowskis' property but not the neighborhood in general
as required by Section 10.
i'
'j DECISION OF
j' NORTHAMPTON ZONING BOARD OF APPEALS
At a meeting held on April 17, 1991, the Zoning Board of
Appeals of the City of Northampton voted unanimously to DENY
the request of Frederick J. Ostrowski and Alice L. Ostrowski
for a Variance from the Provisions of Section 6.12(a) of the
Northampton Zoning Ordinance, to allow four houses to be served
by a common driveway at 588 Kennedy Road, Leeds, instead of the
allowed three. Present and voting were Chairman Robert C.
Buscher, William R. Brandt, and M. Sanford Weil, Jr.
The Findings were as follows:
The applicant finds himself in a situation of his own making;
he has had, and continues to have, beneficial use of his land.
There is no hardship involved as the result of literal
enforcement of Section 6.12(a).
The Board finds no circumstances relating to the soil
conditions, shape, or topography of applicant's parcel that are
unique to this parcel and not found generally in the zoning
district. The size of the parcel is irrelevant.
The addition of a fourth home on the existing common driveway
is not a de minimis change; it is in fact a one -third increase
in the number of users.
Section 6.12(a) is clear and specific about the number of homes
to be served by a common driveway. Granting the variance will
derogate from the purpose and intent of the ordinance.
The Variance is denie_d-,by unanimous vote.
Robert C. guscher, Chairman
William R. andt
M. Sanf(1rd Weil, Jr'`.
Northampton Zoning Board of Appeals
April 17, 1991 Meeting
Page One
The Northampton Zoning Board of Appeals met at 7:00 p. m. on
Wednesday, April 17, 1991 in Council Chambers, Wallace J. Puchalski
Municipal Building, Northampton, to continue the Public Hearing on
the Application of Frederick and Alice Ostrowski for a Variance to
allow four houses to be served by a common driveway at 588 Kennedy
Road, Leeds. Present and voting were Chairman Robert C. Buscher,
William R. Brandt, and M. Sanford Weil.
Ch. Buscher called the meeting to order, the minutes of the
February 20th meeting were approved by unanimous vote, and those
present were told that the Board had received voluminous briefs
_ from attorneys for both sides, as well as the opinion of the City
Solicitor, dated April 11, which the Chair read aloud.
Atty. Alan Verson appeared for the Applicants, and summarized his
position. He pointed out, "All this Board is concerned with is a
single variance. There are three criteria which must be met: Does
granting the variance derogate from the purpose and intent of the
ordinance? Restricting private driveways to three homes is related
to density These lots are 20 to 63 acres. Allowing one more
house is not intensive use. Look at the quality of construction of
the road - -12 inch gravel base and two coats of asphalt. The
history of its use is that there have been no complaints about the
quality of the road in eight years. The Fire Department has no
objection. There are no trees adjacent to the driveway. 'Public
safety' is a bogus issue of the neighbors. The users of the road
have no objection. The comparison is made to the 1,000' limit on
subdivision roads. That's inappropriate. There could conceivably
be 20 houses on a 1,000' subdivision road. Here, we're talking
three or four. The second point is the size, shape and topography
of the parcel. The statute doesn't require that uniqueness in
those areas be limited to 'the neighborhood, ' as Kathy Fallon says,
but to the entire zoning district. There may be other similar
lots, but they are not generally found in the district. The
Ostrowskis did create the lot in 1981. There was no flag lot
ordinance then, and no ordinance about the length of private
driveways. They created legal lots. The Bruzzese and Lee cases
involve creating lots, and leaving one lot that didn't comply.
That's not the case here. In those cases, the applicant left a lot
way out of compliance, and came to the ZBA and said, 'give me a
break.' The lots before you are not trying to circumvent the
ordinance - -they are not in violation. They created the lots
legally at that time and now, since the ordinances have changed,
the Ostrowskis want to take advantage. This is a relatively minor
variance - -three houses versus four houses. This case is closer to
the Paulding case, where the zoning ordinance changed and the court
said, 'We'll let you build under the current ordinance.' The third
point is that literal enforcement of the ordinance must create a
hardship. The law in Massachusetts is that the court can take into
account relative to hardship the type of variance being
° 'Now „WW
Northampton Zoning Board of Appeals
April 17, 1991 Meeting
Page Two
requested. This is not a use variance, or a large dimensional
difference. This is a minor variance. The court can relax
somewhat its hardship requirement. The hardship is 57 acres with
a spectacular view that they can't use if the variance is not
granted. Considering the minimal nature of the request, the
hardship is adequate."
Atty. Bruce Leiter, appearing on behalf of a group of neighbors,
opened by saying, "I don't want to get into a discussion of who's
morally right or wrong, and who has a grudge. I represent people
who don't want this, and they have a right to be heard. If
Ostrowski plows your driveway, you're not going to object. This is
a use variance, and it's not de minimis. People have a right to
rely on the zoning ordinance. These are not extreme circumstances.
This does not meet the legal requirements for a variance. Where's
the hardship? Not the view. You are losing financial gain, but
that's not a hardship. The determinative factor is that he created
the lot and has used it legally. There is no hardship shown to
give an exception. The Paulding case is no precedent. Here we
have an attempt to subdivide a lot, and it flies in the face of the
Paulding case. This is not unique. 'Especially affecting that
piece of land.' There is nothing unique about Ostrowski's land.
If the change in the flag lot ordinance did not include a maximum
of three lots, they'd be OK. The limit was put there for a reason,
to limit density. Public safety is not a bogus issue. There are
basic public safety criteria -- turnouts - -there are none. There will
be a derogation to the public good if this variance is granted. I
have to argue to you that the criteria for a variance are not met.
The hardship is 'not being able to build another house.' He
already is using the land. Mr. Ostrowski chose the layout of the
property. He has made maximum advantage of the frontage. He
created this problem. I respectfully conclude you should deny this
variance."
Mr. Weil asked Atty. Verson why Christensen and Aquadro are not on
the abutter list. Mr. Verson replied, "The assessors' map for
this parcel is on four separate pages, and is extremely confusing.
The Assessor certified my list. Mr. Ostrowski noticed that some
people were not listed. Joan Sarafin concluded they weren't
abutters. I sent notice to them apart from the system." Mr.
Brandt moved that the public hearing be closed. Mr. Weil seconded,
and the motion passed unanimously.
Mr. Brandt began the Board's discussion by saying, "Both attorneys
waxed eloquently. There are certain criteria to consider. One
might say, 'Who cares ?' The house is atop 66 acres and is
invisible. The other side of the coin is that we do have laws that
bind us. Variances are difficult to grant. Extreme cases are
required. This is not an extreme case. I don't find a hardship.
Ostrowski created the situation. He has had beneficial use of the
Iftow _qmvow,
Northampton Zoning Board of Appeals
April 17, 1991 Meeting
Page Three
land. The parcel is not unique. The law is clear - -must be site
specific. Ostrowski created the lots and has used them. The land
is not unique, and I'll vote against the variance."
Mr. Weil added, "I disagree with the de minimis allegation. The
road is the Planning Board's problem. I agree with Bill Brandt,
the requirements for a variance are not met, especially topography.
I'll vote against."
Ch. Buscher said, "I disagree mildly with Sandy. The road is
everything here. The possibility exists to create two flag lots,
but the road and common driveway is the crux of the variance. I
have to agree with my colleagues. The City Council has determined
that private driveways must comply with certain requirements,
especially turnouts and width. Atty. Verson said that the road
does not present a safety problem. He says it's de minimis We
are increasing by one third the number of lots served. That's not
de minimis As to hardship, the applicant had the decision to buy
the parcel or not buy it. He bought it. He did not have to
subdivide it this way. Now, he says, 'I've enjoyed my acreage, but
now it bores me.' That's not hardship. The ordinance has an
intent and purpose. It's clear and specific about common
driveways. There is no reason to grant the variance because it
will derogate.
Mr. Brandt moved that the variance request be denied. Mr. Weil
seconded, and the motion passed unanimously.
Also present, in addition to those mentioned, was R. J. Pascucci,
Board Secretary.
Robert C. Buscher, Chairman
'... ,.601,+
Northampton Zoning Board of Appeals
March 20, 1991 Meeting
The Northampton Zoning Board of Appeals met at 7:25 p. m. on
Wednesday, March 20, 1991, to continue the public hearing on the
application of Frederick and Alice Ostrowski for a Variance to
allow more than three homes to be served by a single common
driveway. Present and voting were Chairman Robert C. Buscher,
William R. Brandt, and M. Sanford Weil, Jr.
Ch. Buscher read a letter from Atty. Alan Verson, representing the
applicants. He requested a continuance to April 17th because his
client is out of the state today, and Mr. Verson is out of the
country. Ch. Buscher mentioned that counsel for both the applicant
and the objecting abutters have submitted briefs. The Secretary
told the Board that both briefs have been submitted to the City
Solicitor for her comments and opinion. Mr. Brandt moved that the
public hearing be continued to April 17th. Mr. Weil seconded, and
the motion passed unanimously.
Robert C. guscher, Chairman
'\w► ,.0,1
Northampton Zoning Board of Appeals
February 20, 1991 Meeting
Page One
The Northampton Zoning Board of Appeals met at 8:05 p. m. on
Wednesday, February 20, 1991 in Council Chambers, Wallace J.
Puchalski municipal Building, Northampton, to conduct a Public
Hearing on the request of Frederick J. and Alice L. Ostrowski for
a Variance from the Provisions of Section 6.12(a) of the
Northampton Zoning Ordinance to allow four houses to be served by
a common driveway, instead of the allowed three, on property at 588
Kennedy Road, Leeds. Present and voting were Ch. Robert C.
Buscher, William R. Brandt, and M. Sanford Weil, Jr.
Ch. Buscher opened the Public Hearing by reading the Legal Notice,
the application, the Chapter 40A criteria, and Section 6.12(a). He
mentioned that there was an abundance of correspondence in the
file, but read none of it. Atty. Alan Verson was present to
represent the Applicants. He said, "This is a complicated set of
applications, four of which are Planning Board Special Permits, and
only one, the Variance request, is before this Board tonight. The
objective is that the Ostrowskis want to build a single - family
house on a 57 acre lot that they own. A brief history would be
helpful. In 1981 Ostrowski bought an 85 acre parcel and divided it
into five lots, two of which are on Kennedy Road, two lots farther
up the hill (Grinnell and Hinckley) and Ostrowski at the top of the
hill on 66 acres with 214' of frontage. There are elaborate
restrictions recorded at the registry. This land has unusual
characteristics: 10 -12 acres of open, unfenced field next to
Kennedy Road. Another provision of the deeds is that Ostrowski
reserved the right to build another house in the future. The
people who bought the lots understood this. In 1983 the road was
constructed. It is a solidly constructed road. In eight years the
road has never presented a problem. It is the sole access for
Ostrowski, Grinnell and Hinckley. The Fire Department has been up
there twice. Last summer, Ostrowski decided to sell his big house
and build a smaller one to the rear of his current house. The plan
you see before you is what will be the result of several land swaps
that Grinnell and Hinckley have agreed to. Mr. Ostrowski has
spoken to almost all the abutters on the list, including all who
are directly involved. No one has objected. At the Planning Board
hearing, there was not one word of opposition from the neighbors.
The Planning Board did not vote on the four Special Permits, but
they seemed to be in favor of passing. One member suggested that
this Board vote on the Variance first, and then they would vote on
the Special Permits. What's before you is a Variance for four lots
to be served by one common driveway. The law has three
requirements: 1) The shape and topography be unique and not
generally found in the district; this is a highly unusual parcel- -
66 acres, 214' of frontage, and a 235' rise in elevation from the
street to Applicants' house. The law doesn't require that this be
the only such parcel, just one not generally found in the district.
2) Literal enforcement must create a hardship. Ostrowski would be
deprived of the use of a 57 acre parcel which is a hardship, not
I+... ..000.1
Northampton Zoning Board of Appeals
February 20, 1991 Meeting
Page Two
personal to him but a hardship to any owner of the parcel. I
expressed my opinion on hardship in a letter to Wayne Feiden. This
is a relatively minor variation. If you rank variances on their
impact on the neighborhood, you would start with a use Variance,
with substantial deviation. But this one, three houses versus four
houses, is extremely minor in nature. I feel we comply with the
hardship criteria, but you can impose even a lesser standard. 3)
Relief will not be a substantial detriment to the public good, nor
will it derogate from the intent and purpose of the ordinance.
What is the intent of this ordinance? The intent is to allow
development that has less intensive impact on municipal services.
That is precisely what we have here. Private water, private sewer,
private road, no need for DPW services or street lights. Kathleen
Fallon's memo suggests that the steepness of the road will cause
problems. The Fire Department states in writing that it has no
problem. The Ostrowskis don't have a four -wheel drive car -- neither
does Hinckley. The 'strain on municipal services' that Kathleen
Fallon remarks about is a mystery to me. She is not the person to
comment on steepness. The only issue before this Board is the
small extension of the existing driveway. Once the driveway
reaches the property line of the new parcel, it is no longer
common. Mr. Ostrowski will plow the road as long as he lives
there. Maintenance is done by all parties who use it. The
existing common driveway ends at Grinnell's driveway."
Messrs. Buscher and Verson engaged in a discussion of precisely
what the common driveway is. Mr. Brandt, commenting on the DPW
comment, "Driveway has slopes in excess of 15 %," said he would like
the DPW's opinion on the suitability of the driveway. Mr. Verson
added, "This house will not be visible from any other house in
Northampton. Mr. Ostrowski and Garson Fields agree that the new
house cannot be seen from Fields' house." Ch. Buscher inquired,
"What's de minimis Here we have a house that will have no effect
on anyone except the three other people who share the road. Then
you say it's a hardship because your client can't use his 57 acres.
One of the things you want from the Planning Board is a change in
frontage. Eight years ago, was 175' the required frontage ?" Mr.
Verson replied, "Yes. He divided it up ten years ago the best he
could. As to any detriment to the public good, there's nothing
particularly magic about the number three for common driveways.
Other communities go from one to six for the number of houses
allowed off a common driveway. Oftentimes, common driveways are
narrow and gravel. This is a substantial road. Four houses is
nothing for this road to handle. Also, a concern of the ordinance
is that a tree could fall and block the driveway. There is not one
single tree close to this driveway until you get to Ostrowski's
proposed private driveway. The paved part of the driveway is 12-
13' . The shoulders are flat for some distance. The road is plowed
the width of two cars. No one has ever had to back down the length
of the hill to let someone pass. My last point is that the only
Nftw r.WOI
Northampton Zoning Board of Appeals
February 20, 1991 Meeting
Page Three
parties who are concerned, i. e., those who use this driveway, have
assented. This is not being imposed upon anyone."
Ch. Buscher inquired,. "Getting back to hardship, if what you
accept changes, why is that a hardship ?" Mr. Verson replied, "They
did what they were allowed to do at the time. The law changed.
Now they feel it's a hardship that they can't use 57 acres." Ch.
Buscher asked, "Why is it a hardship now ?" Mr. Verson responded,
"Because the laws have been amended to encourage this sort of
development. There is a new situation. We ask that you vote to
issue a variance."
There was no one else present to speak in favor, and when the Chair
called for opponents, Atty. Bruce Leiter, 274 Springfield St..
Springfield, with offices at 1500 Main St Springfield informed
the Board that he represents "The Christensens, Aquadros, Garson
Fields and his wife, and Robin Fields. I'd like to fill you in on
the prior history, about the unusual shape of the parcel and about
hardship. The land was purchased on May 5, 1981. None of those
lot lines were there. It was a 90 acre lot with 1,000' of frontage
on Kennedy Road. Ostrowski could have created a subdivision and
built a proper road. Instead, he created a set of easements and
restrictions. Driveway maintenance up to the westerly point of
Lots 2 and 3 is the joint responsibility of the owners of those
lots, plus Ostrowski. From there on, it's Ostrowski's to maintain,
and he plows the entire driveway. When Ostrowski moves, there's
four users. Ostrowski recorded the plans, and conveyed out the
Verson lot and three others. If he wanted to make a subdivision
then, he could. He reserved the right to put a fifth house on the
property if it were legal to do so. We contend that it is not
legal. Variances should not be granted lightly. There is no
unusual shape to the back 60 acres. At the time of the deed
restrictions, he created the exact setup that now exists. Based
upon case law, hardship is not caused by the shape of a lot that
you yourself have created." Ch. Buscher asked for the exact
language in the deeds concerning "the back acres." Mr. Leiter read
it, and Ch. Buscher commented, "That's pretty non - specific. Do you
contend that he precluded himself from changing the restrictions in
the future ?" Mr. Leiter replied, "He created four parcels for
immediate sale, plus one for him. He precluded himself from
claiming hardship." Ch. Buscher asked, "Who does he bind himself
to ?" "The other four people," replied Mr. Leiter. "He created the
scheme -- there's no hardship. My major point is that he chose the
means to divide the parcel, and he cannot claim hardship. I cite
Arego v. Planning Board of Franklin and Gordon v. Board of Appeals
of the Town of Lee In Gordon he bought a parcel, then
subdivided, and left himself without adequate frontage. Then he
found a buyer and went to the ZBA claiming hardship. The ZBA
granted the Variance, but the Appeals Court overturned it. He
created the situation - -it's a self - inflicted hardship, and the
*a..,. - . 0 1,
Northampton Zoning Board of Appeals
February 20, 1991 Meeting
Page Four
unusual shape of the land is self- created. Also, Section 10 talks
about shape not size. He is utilizing that property now for his
single - family home. I think we have substantial legal problems
with the ability of this Board to grant a Variance. What are my
clients' interests? The Fields abut, and they rely on the zoning
ordinances of the city to protect them. The Variance would be
illegal if granted, and doesn't meet the first two criteria.
Public safety is a concern of my people. Is a fire up there going
to spread to my peoples' property? Section 6.13 says that 'grade,
length and location' must be adequate. They need 15' of width,
turnouts, etc. What we have here is a 1,200' driveway with 600'
more to be added. That's 1/3 of a mile, and a public safety
concern. This is not de minimis
Mr. Weil asked, "At the time he set this up in 1981, the other
people agreed that he could build another home ?" Mr. Leiter
replied, "The restriction recorded in 1981 had a requirement that
'no improvements other than one single - family dwelling with a
garage holding no more than three cars shall be constructed.' I
also cite Brudzese v. the ZBA of Hingham, 343 Mass. 421 It says
that if you have a one - family dwelling, the potential of developing
another house does not equal hardship."
Also speaking in opposition was Robin Fields, 410 Kennedy Road who
said, "I speak for myself and my brother Garson. Mr. Leiter has
presented our concerns thoroughly." Richard Aquadro, 640 Kennedy
Road added, "I echo Mr. Leiter's and Miss Fields' remarks."
Ch. Buscher commented, "I hesitate to ask, but I'm not totally sure
why the neighbors care if there's another house up there. Some of
those represented are not even close to the proposed house." Mr.
Leiter responded, "It's Rural Residential. People want things to
remain the way they are. They're concerned about safety issues.
What can happen four years from now when someone wants to put
another house in. You're creating a subdivision outside the
purview of the subdivision control law." Mr. Verson added, "I
think Mr. Buscher raised a very good question - -why do these people
care? This is open land surrounded by woods. I have no idea why
people are here objecting. Mr. Aquadro made it perfectly clear at
the Planning Board meeting when he accosted Mr. Ostrowski and
called him obscene names. The Aquadro house is 1,000' or more from
the planned house. In terms of impact on neighbors, there is none.
Their concern for safety is transparent. Leiter says there are no
'shape' or 'hardship' issues because a subdivision could have been
built. I disagree. It is impossible to put in a subdivision
there." Ch. Buscher opined, "In 1981 he had three choices; 1)
buy the land or don't; 2) Buy it and keep it whole; and 3) Buy
it and break it up."
Mr. Verson continued, "The concerns over the width of the driveway,
Northampton Zoning Board of Appeals
February 20, 1991 Meeting
Page Five
turnouts, etc. are not the concerns of this Board. Your issue is
'three houses or four houses. For eight years there have been
three houses with no problems. As to the additional 600' common
driveway, that's not a common driveway. The deeds limit foot
access to no closer than 400' from any house."
Mr. Weil asked Mr. Verson to "Please respond to the contention that
the topographical problem is self - inflicted." Mr. Verson replied,
"Nature created the topographic feature, which is not generally
found in the area. This is an exceptionally large parcel of land
with small (214 frontage, and a 235' increase in elevation from
the road." Ch. Buscher commented, "What you've got is a ridge
line." Mr. Verson added, "There are some similar lots, but they
are not found generally in the zone." Mr. Brandt commented, "Mr.
Leiter makes a good argument that Ostrowski created this situation
nine years ago, and he supports this with case law. Didn't
Ostrowski create his own hardship ?" Mr. Verson countered, "The
same rigorous standard for a Variance does not apply here." Mr.
Brandt went on, "He created a strange lot, but it has a single -
family house on it. He uses that unique lot." Mr. Verson
remarked, "It's unusual to have only one house on 66 acres in
northampton." Mr. Brandt continued, "I'd like to see your response
to the 'Town of Lee' case." Mr. Leiter inquired, "Would you like
written memoranda ?" Ch. Buscher replied, "Yes, with all succinct
comments, cites, deed restrictions, etc. The issues may not be as
complicated as they seem."
Mr. Brandt moved to continue the Public Hearing to March 20, 1991.
Mr. Weil seconded, and the motion passed unanimously.
Also present, in addition to those mentioned, was R. J. Pascucci,
Board Secretary.
Robert C. Buscher, Chairman
`*AI.. -Wol
CITY OF NORTHAMPTON
ZONING BOARD OF APPEALS
NORTHAMPTON. MASSACHUSETTS 01060
DATE: MAY — 801
RE: THE REQUEST OF FREDERICK J. AND ALICE L. OSTROWSKI FOR A
VARIANCE TO ALLOW FOUR HOUSES TO BE SERVED BY A COMMON DRIVEWAY AT
588 KENNEDY ROAD, LEEDS.
Pursuant to the Provisions of the General Laws of the Commonwealth
of Massachusetts, Chapter 40A, Section 15, notice is hereby given
that a decision of the Zoning Board of Appeals of the City of
Northampton was filed in the Office of the City Clerk on the above
date DENYING the requested Variance.
If you wish to appeal this action, your appeal must be filed in
Superior Court within 20 days of the date this decision was filed
in the Office of the Northampton City Clerk.
Robert C. Ifuscher, Chairman
LAWRENCE I JONES
CHIEF
.". QIiiv of
Xor,421 1]Aalt, C O2w"Chusetts
91060
FIRE DEPARTMENT T EADQUARTERS
OFFICE OF CHIEF
60 MASONIC STREET
Telophono 584 -7165
TO: Northampton Planning Board
FROM: Fire Chief Lawrence J. Jones,��
� 1
DATE: Jan. 28, 1991
RECEIVED
JAN 2 81991
� � r
RE: Request of Frederick J. and Alice L. Ostrowski - Flag Lots and Common Driveway
588 Kennedy Rd.
The Northampton Fire Department inspected this site and found that it would
not be a problem for response by the Fire Department Vehicles.
The Northampton Fire Department recommends that the following be considered
when allowing the use of Flag Lots or Common Driveways:
I. If a flag lot is used so that any structure built on it will be
located an appreciable distance from the public road, a substantial
roadway capable of supporting heavy fire apparatus should be required.
This roadway should be at least 12' wide and may be colprovia, gravel,
crushed stone, etc. Our main concern is that it be accessible during the
spring mud season or other wet periods. If it is necessary to install
any culverts, they should be capable of supporting fire apparatus.
2. When one driveway is common to two or more properties, a suitable sign
should be posted near the main road and at the cutoff to each property.
This sign should include visible street numbers in case of emergency
response by the Fire, Police or Ambulance Departments.
LJJ /lml
`..-
ALAN VERSON
ATTORNEY AT LAW
56 MAIN STREET - SUITE 218
NORTHAMPTON, MASSACHUSETTS 01060
M
TELEPHONE (413) 586 -1348
February 5, 1991
Mr. Wayne Feiden
Northampton Planning Dept.
212 Main Street
Northampton, MA 01060
Dear Wayne:
In connection with the pending application for variance of
Frederick and Alice Ostrowski, please consider the legal points raised
in this letter in arriving at any recommendation made to the planning
board and zoning board. Also, please see that the individuals sitting
on the zoning board for this matter receive a copy of the letter.
The statute governing the granting of variances, G.L. Chapter 40A,
Section 10, does not indicate that there should be any difference in the
degree or type of "hardship, financial or otherwise" that must be shown
for different kinds of variances. Nonetheless, the Massachusetts
caselaw and the treatises on zoning clearly indicate that the
requirement of hardship can be enforced somewhat less rigorously or
precisely if the application involves a relatively minor dimensional
issue.
Almost all of the Massachusetts cases on variances deal with a use
variance or other substantial variance from the zoning ordinance. In
almost every such case, the court on appeal denies the variance. In the
few cases where courts have allowed the granting of a variance, a
dimensional or other relatively minor variance was being sought. See
Josephs v. Board of Appeals of Brookline 362 Mass. 293 (1972) and
Wolfman v Board of Appeals of Brookline 15 Mass. App. Ct. 112 (1983).
In DiGiovanni v. Board of Appeals of Rockport 19 Mass. App. Ct. 339
(1984), where the court denied a variance, it stated "where
noncompliance amounts to a matter of inches, we might reach a different
conclusion.
These Massachusetts cases have allowed one Massachusetts writer to
conclude that "even relatively minor hardship can justify a variance
where inconsequential dimensional variances are involved." 1
Massachusetts Zoning Manual (1989) pages 9 - 14. A multi - volume
treatise on zoning, dealing generally with zoning laws of various
states, has recognized that there is
'`..Wl
Mr. Wayne Feiden 2 February 5, 1991
. . the general application, by the courts of
a large number of states, of a lower standard to
the granting of area variances than is applied
to use variances. In many of the decisions, the
language of unnecessary hardship is employed and
the watered -down version of the standard must be
inferred from the results 4 . . . in the case of
area variances, it is assumed by most courts
that adequate protection of the neighborhood can
be effected without the imposition of the
stringent limitations which have been developed
in the use variance cases."
3 American Law of Zoning 3d, section 20.48, Anderson. See also 6 Zoning-
and Land Use Controls section 43.20 (2), Rohan.
The variance being requested by the Ostrowskis is certainly minor
and inconsequential in nature. Compared to the types of variances that
are most often requested, such as for use, for frontage or even for size
of lot or setbacks, the issue in this situation can safely be
characterized as a relatively unimportant detail in the zoning
ordinance. The difference between the common driveway serving four lots
instead of three lots would be difficult to recognize or place any
degree of importance upon. It will have virtually no impact on the
immediate abutters or on the neighborhood. It is not a dimensional
issue, as referred to in the above cases and treatises, but it is
directly comparable in terms of being minor in nature, and the same
reasoning should apply.
For these reasons, the Board of Appeals is able to apply a less
rigorous and demanding standard in determining if the Ostrowski
application has satisfied the statutory requirement that there be
"substantial hardship, financial or otherwise."
Thank you for your consideration.
ery truly yours,
City of Northampton, Massachusetts
Office of Planning and Development
City Hall • 210 Main Street
Northampton, MA 01060 • (413) 586 -6950
• Community and Economic Development
• Conservation • Historic Preservation
• Planning Board • Zoning Board of Appeala
• Northampton Parking Commission
TO: Northampton Planning Board
FROM: Wayne FeidenEnvironmental Planner
RE: Ostrowski Variance and Special Permit Applications
DATE: February 6, 1991
Frederick and Alice Ostrowski have requested a Variance and four
Special Permits to allow them to build a second house on their
property on Kennedy Road. There are several problems with the
proposed project that violate the intent of Northampton's Zoning
Regulations.
The proposed common driveway would serve four homes, be over 1/2
mile long and, in areas, exceed 16 percent slope. This would
increase the risk to public safety, put a greater strain on
emergency services, and violate the intent of §6.12 (Common
Driveways) and §6.13 (Flag Lots), which were passed to allow
greater development options with less stress on municipal services.
For comparison, the Planning Board's Subdivision Regulations
prohibits dead -end roads from being over 1000 (1 /5th mile) feet
long, while many communities use 800 feet as the maximum length.
Public roads are wider, better constructed, typically better
maintained, and not nearly as steep as the proposed driveway.
Variance request (to the ZBA) to allow four homes to use a common
driveway (M.G.L. Chapter 40A 610)•
(1) The property is not uniquely shaped nor are there unique
physical circumstances which are different from many parcels
in Northampton.
(2) There is not a substantial hardship if the applicant is unable
to build a second home when there is already one home on the
parcel.
(3) Granting relief would increase the risk to public safety and
put greater strain on emergency municipal services.
The applicant's comments notwithstanding, the variance request is
neither minor nor inconsequential.
Special Permit requests for access across side yard and common
driveway (66.12)_
1 ...
1 ../
(1) The common drive would serve four homes, with a greater chance
of accidents on the drive and greater demand for special
emergency vehicles (with chains, four wheel drive, tanker
trucks etc).
(2) The length and grade of the common driveway provides a great
risk for the movement of emergency vehicles and trucks.
The applicant has not submitted details on the construction of the
road or easements and easement plans, as required in §6.12. If the
Planning Board approves the request, you can deal with these items
by conditions in your approval.
Special Permit requests for flag lots (66.13):
(1) The zoning requires a fifty foot "access width" from the
street to the lot. There is not effective access on the flag
from Kennedy Road to the newly proposed house site.
(2) The zoning requires that it is possible to place a circle,
with a minimum diameter equal to 1.5 times the minimum
frontage for a non -flag lot, without any portion of the circle
falling outside the property line. With 175 feet of minimum
frontage, the circle diameter is 262.5 feet. The plans show
the proposed house falling 230 feet from the side property
line.
(3) The length and grade of the common driveway provides a great
risk for the movement of emergency vehicles and trucks.
The applicant has not submitted final plans, as required in §6.13.
If the Planning Board approves the request, you can deal with these
items by conditions in your approval.
City of Northampton
MEMORANDUM
Law Department
TO: WAYNE FEIDEN, ENVIRONMENTAL PLANNER
FROM: KATHLEEN G. FALLON, CITY SOLICITOR -
SUBJECT: OSTROWSKI FLAG LOT APPLICATION
DATE: FEBRUARY 14, 1991
I have reviewed the Ostrowski's application for a special
permit to create a flag lot in connection with their property on
Kennedy Road.
The Ostrowski lot is already somewhat unusual in
configuration. It has 214 feet of frontage and a lot width
approximately equal to its frontage for a depth of approximately
200 feet. These dimensions would be acceptable in the RR district
for a conforming lot. However, the Ostrowski lot continues back
as a long strip approximately 100 feet wide and 800 feet long, then
opens out into a very large rectangular area of seven (7) acres,
more or less. There is a house located in this rear portion. A
common driveway serves the Ostrowski house and two residences in
lots located between the rear portion of the Ostrowski lot and
Kennedy Road. The common driveway does not follow the Ostrowski's
strip of land running from Kennedy Road.
The Ostrowskis want to create a flag lot out of the rear
portion of their property by dividing the front strip leading to
the area in half, then running a Fifty (50) foot strip around the
perimeter of the rear portion of the lot. The "flag" portion of
the lot to be created is the rear of the current lot. Access to
the "flag" would not be over the Fifty (50) foot strip but by way
of an extension of the present common driveway.
Currently our flag lot ordinance does not specifically state
that the access strip must extend from the frontage in a straight
line, that it cannot exceed a certain length, or that actual access
to the "flag" must be over the access strip. However, the intent
of the ordinance must be considered as well as the language.
Access to the "flag" must be over the access strip unless the
owner of a flag lot also receives other zoning relief such as a
permit for a common driveway. However, such additional relief is
purely discretionary. Therefore, the flag lot ordinance must
contemplate the access roadway to the "flag" as being on the access
..000
strip. The flag lot ordinance states that no access roadway shall
have a curve with a'radius of less than Eighty (80) feet. Since
the access strip has two 90 turns, it is clear that it could not
provide access as required in the ordinance. Therefore, I do not
feel that the configuration of the flag lot proposed by the---�
Ostrowskis is permissible under the ordinance.
In addition, the proposed location of the dwelling would not
conform to the flag lot requirements. Since the frontage required
is 175 feet in an RR district, the house must be 1'k times that
distance from the lot line. The house as shown is only 225' from
the lot line instead of the required 262.5 feet.
In any case, Section 6.13(j) gives the permit granting
authority the right to refuse a flag lot special permit if it feels
that the grade, length and location of the access driveway is not
suitable. In this case, the proposed access will be over a common
driveway which exceeds 2,000 feet in length. Our subdivision
regulations do not permit a dead end street of more than 1,000
feet. The driveway has, in places, a 16% slope; clearly greater
than anything allowed in the subdivision regulations. It is well
within the Planning Board's discretion to find that, even if it
feels the Ostrowskis' flag lot layout is permissible under the
current ordinance, the proposed driveway does not provide adequate
access.
Finally, the applicants have requested a variance to permit
the common driveway to serve four houses rather than the three
allowed by the zoning ordinance. I have read Attorney Verson's
letter stating that he views this in the same light as a "de
minimis" dimensional variance. He seems to imply that the
requirements for a variance do not need to be as stringently
enforced. I disagree.
The cases which discuss "de minimis" dimensional variances
mean just that. The amounts by which the parcel in question varies
from the requires dimensions under zoning are minuscule and would
certainly not impair the character of the neighborhood. I see no
correlation between this line of cases and the variance request of
the applicants. I do not agree with Attorney Verson that it is
"minor and inconsequential ".
In some cases having a common driveway serve four rather than
three residences could be considered as "inconsequential ".
However, the issue turns on the physical characteristics of the
driveway. In this case, the driveway is already over 1,700 feet
long. To reach the proposed dwelling it must be extended another
600 feet, more or less. It has steep grades in several places.
Whether this driveway can physically serve an additional dwelling
is not an inconsequential issue.
- .
NrW. .,./
GARSON R. FIELDS
BerlsL:re Electric CaLle Co.
Leeds, M"saeLasetts
February 12. 1991
Dr. Joseph Beauregard, Chairman
Northampton Planning Board
City of Northampton, City Hall
210 Main Street
Northampton. MA 01060
Dear Dr. Beauregard:
This letter concerns the request of Frederick J.
and Alice L. Ostrowski for four Special permits,
all involving the 66 -acre tract at 588 Kennedy
Road, Leeds, as described in the Public Notices
dated January 31, and February 7, 1991. Please
include this letter in the official record.
I met with Fred Ostrowski on February 9, 1991 on
the proposed building site. He gave me his word
that if the four Special permits were granted, n4
part of the residence, road or other buildings or
facilities would be at all visible from my
residence at 426 Kennedy Road.
If the Planning Board grants the subject permits,
I am requesting that a condition of each permit
be made that na Portion of the residence, road or
other buildings or facilities be visible from my
residence at 426 Kennedy Road, Leeds.
If you have any questions, please contact me at
584 -3853.
Sincerely,
v i
Garson R. Fields
GRF /dsh
`%✓
City of Northampton
MEMORANDUM
Law Department
TO: WAYNE FEIDEN, ENVIRONMENTAL PLANNER
FROM: KATHLEEN G. FALLON, CITY SOLICITOR 4 -fl?-
SUBJECT: OSTROWSKI FLAG LOT APPLICATION
DATE: FEBRUARY 14, 1991
I have reviewed the Ostrowski's application for, a special
permit to create a flag lot in connection with their property on
Kennedy Road.
The Ostrowski lot is already somewhat unusual in
configuration. It has 214 feet of frontage and a lot width
approximately equal to its frontage for a depth of approximately
200 feet. These dimensions would be acceptable in the RR district
for a conforming lot. However, the Ostrowski lot continues back
as a long strip approximately 100 feet wide and 800 feet long, then
opens out into a very large rectangular area of seven (7) acres,
more or less. There is a house located in this rear portion. A
common driveway serves the Ostrowski house and two residences in
lots located between the rear portion of the Ostrowski lot and
Kennedy Road. The common driveway does not follow the Ostrowski's
strip of land running from Kennedy Road.
The Ostrowskis want to create a flag lot out of the rear
portion of their property by dividing the front strip leading to
the area in half, then running a Fifty (50) foot strip around the
perimeter of the rear portion of the lot. The "flag" portion of
the lot to be created is the rear of the current lot. Access to
the "flag" would not be over the Fifty (50) foot strip but by way
of an extension of the present common driveway.
Currently our flag lot ordinance does not specifically state
that the access strip must extend from the frontage in a straight
line, that it cannot exceed a certain length, or that actual access
to the "flag" must be over the access strip. However, the intent
of the ordinance must be considered as well as the language.
Access to the "flag" must be over the access strip unless the
owner of a flag lot also receives other zoning relief such as a
permit for a common driveway. However, such additional relief is
purely discretionary. Therefore, the flag lot ordinance must
contemplate the access roadway to the "flag" as being on the access
strip. The flag lot ordinance states that no access roadway shall
have a curve with a*radius of less than Eighty (80) feet. Since
the access strip has two 90 turns, it is clear that it could not
provide access as required in the ordinance. Therefore, I do not
feel that the configuration of the flag lot proposed by the
Ostrowskis is permissible under the ordinance.
In addition, the proposed location of the dwelling would not
conform to the flag lot requirements. Since the frontage required
is 175 feet in an RR district, the house must be 1h times that
distance from the lot line. The house as shown is only 225' from
the lot line instead of the required 262.5 feet.
In any case, Section 6.13(j) gives the permit granting
authority the right to refuse a flag lot special permit if it feels
that the grade, length and location of the access driveway is not
suitable. In this case, the proposed access will be over a common
driveway which exceeds 2,000 feet in length. Our subdivision
regulations do not permit a dead end street of more than 1,000
feet. The driveway has, in places, a 16% slope; clearly greater
than anything allowed in the subdivision regulations. It is well
within the Planning Board's discretion to find that, even if it
feels the Ostrowskis' flag lot layout is permissible under the
current ordinance, the proposed driveway does not provide adequate
access.
Finally, the applicants have requested a variance to permit
the common driveway to serve four houses rather than the three
allowed by the zoning ordinance. I have read Attorney Verson's
letter stating that he views this in the same light as a Me
minimis" dimensional variance. He seems to imply that the
requirements for a variance do not need to be as stringently
enforced. I disagree.
The cases which discuss Me minimis" dimensional variances
mean just that. The amounts by which the parcel in question varies
from the requires dimensions under zoning are minuscule and would
certainly not impair the character of the neighborhood. I see no
correlation between this line of cases and the variance request of
the applicants. I do not agree with Attorney Verson that it is
"minor and inconsequential ".
In some cases having a common driveway serve four rather than
three residences could be considered as "inconsequential ".
However, the issue turns on the physical characteristics of the
driveway. In this case, the driveway is already over 1,700 feet
long. To reach the proposed dwelling it must be extended another
600 feet, more or less. It has steep grades in several places.
Whether this driveway can physically serve an additional dwelling
is not an inconsequential issue.
` r../
CITY of NORTHAMPTON
OFFICE of PLANNING and DEVELOPMENT
MEMORANDUM
TO: Northampton Planning Board
FROM: R. J. Pascucci for the Zoning Board of Appeals
SUBJECT: Frederick & Alice Ostrowski request for a Variance
DATE: April 18, 1991
FILE:
The Zoning Board of Appeals concluded the public hearing on
the Ostrowski application on April 17th, and voted unanimously to
deny the requested variance. The Board had the benefit of briefs
from the applicants' attorney, and from the attorney for the
objecting abutters, and in addition had the comments and opinion of
the City solicitor. The members were in general agreement on the
following reasons for denial:
1. The Applicant finds himself in a situation of his own
making; he has had, and continues to have, beneficial use of his
land. There is no hardship.
2. The parcel is not unique in its size, shape or topography,
in the district in which it is located.
3. The addition of one more home on the common driveway is
not a de minimis change - -it is a one -third increase in the number
of users.
4. Granting the variance will derogate from the intent and
purpose of the ordinance.
N... -.MW
DECISION OF
NORTHAMPTON PLANNING BOARD
At a meeting held on April 25, 1991, the Planning Board of
the City of Northampton voted Six to One, with One
abstention, to DENY the requests of Frederick J. Ostrowski
and Alice L. Ostrowski for four Special Permits,
specifically: a Special Permit under the provisions of
Section 6.13 of the Northampton Zoning Ordinance to convert
to a flag lot the lot on which the applicants now have a
home; another Special Permit under that same section to
create a new flag lot, the building envelope of which will be
to the rear of the applicants' present home; a Special Permit
under the provisions of Section 6.12 to allow access to a lot
across a lot line other than the front lot line; and another
Special Permit under Section 6.12 to allow the extension of
an existing common driveway to serve the dwelling planned to
be constructed behind the applicants' present home. Present
and voting were Chairman J. Beauregard, N. Duseau, J. Hale,
W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter and
J. Holeva.
:The Board made the following findings:
1. At the same time these four applications were filed, a
request for a Variance from the Provisions of Section 6.12 (a)
was filed with the Zoning Board of Appeals. This request is
to allow a fourth residence to be served by a common
driveway, this being one more than Section 6.12(a) allows.
2. On April 17, 1991, the Zoning Board of Appeals voted
unanimously to DENY this request for a Variance.
3. With the denial of the Variance, a Special Permit for a I
common driveway does not comply with §6.12(a) because there
are more than three houses on the proposed common driveway.
i
4. The new flag lot to the rear of Applicants' present
dwelling canot be created because the denial of the Variance
t
i
s
NORTHAMPTON PLANNING BOARD DECISION
FREDERICK J. AND ALICE L. OSTROWSKI REQUESTS FOR FOUR SPECIAL
PERMITS.
PAGE TWO
precludes access to it. In addition, the ordinance intended
to create flag lots with a long narrow band which runs around
the edge of a second lot. A flag lot is so- called because it
looks like a flag. The proposed lot in no way resembles the
configuration intended by the ordinance.
5. The common driveway does not have adequate grades or
turnouts as required and cannot be approved.
6. Without a common driveway, there is no appropriate access
to the lot except for over the front lot line.
Voting in favor of denying were Beauregard, Mendelson,
Crystal, Riddle, Welter and Holeva. Voting against denying
was Hale. Abstaining were Duseau and Larkin.
i.
The four Special Permits are denied.
I
i
_Dr. Joseph Beauregard, Chair
J - f
Andrew Cryst
Marion Mendelson
dith Hale I
Nancy P. 9seau
s Holeva Wi liam J. arkin
e Welter Bob Riddle
*Mope mope
Northampton Planning Board
February 14, 1991 Meeting
Page One
The Northampton Planning Board met at 7:00 P. m. on Thursday,
February 14, 1991 in Council Chambers, Wallace J. Puchalski
Municipal Building, Northampton. Present were Chair J. Beauregard,
J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter
and J. Holeva; P. Kim and W. Feiden as staff.
At 8:00 P. m., Ch. Beauregard opened the Public Hearing on the
Applications of Fred and Alice Ostrowski for four Special Permits
relative to creating two flag lots, gaining access to a parcel via
other than the front lot line, and creating a common driveway. A
Variance is also requested to allow the common driveway to serve
one more house than allowed. (The Board will discuss the variance
in the context of the Special Permits, and make a recommendation to
the ZBA.) Atty. Alan Verson, representing the Ostrowskis,
explained that they bought the entire 85 acre parcel in 1981.
Three building lots were created, and are now occupied by Grinnell,
Hinckley, and Ostrowski. The Ostrowskis wish to sell the house in
which they now live, and build a smaller one toward the rear of the
parcel. To accomplish this, there will be some "land swapping
involving the three residents, so that Grinnell and Hinckley are
left with legal frontage on Kennedy Road; the current Ostrowski
parcel becomes a flag lot with adequate frontage, and the proposed
new lot becomes a flag lot with adequate frontage. The existing
common driveway will be extended to serve the new home, which will
not be visible from the road. He explained that there are deed
restrictions whereby Grinnell and Hinckley assented - to Ostrowski,
at some point in the future, being allowed to create another lot
and build another house on it. He described the driveway, which
was installed in 1983, as " not a quick and cheap gravel road. It
has a 12" -24" gravel base, four big culverts and two layers of
asphalt - -it has never been a problem in eight years." He addressed
the Flag Lot criteria, Section 6.13, and claimed to satisfy (a)
through (i). " (j) is what this hearing is about - -the grade, length
and construction of the driveway. Feiden says this road is
woefully inadequate. This Board routinely relies on the Fire
Department's opinion on driveways. Chief Jones has found the
driveway acceptable. In spite of Mr. Feiden's opinions, the Fire
Department has gone up the length of it twice with no problems.
The Police Department has done the same. Feiden says 16% grades
exist, but from Kennedy Road to the new lot averages 11 %. The
length of the driveway from Kennedy Road to the lot line of the new
lot is 1/3 of a mile, not a half -mile. As to the quality of
construction, Feiden says it 'compares very poorly to municipal
roads.' This is not a municipal road, it's a private driveway. Is
it an adequate private driveway? I think so, and I submit to you
it is unquestionably of adequate construction. This is a private
development that puts no strains on the city -- private water and
sewer, private road, no DPW maintenance, no street lights." Mr.
Verson then turned to the Special Permit under Section 6.12 for
access on the side of the lot, and said, "This road has been there
`o✓
1..00
Northampton Planning Board
February 14, 1991 Meeting
Page Two
for eight years - -same side line access." He then addressed the
Special Permit for the common driveway, and explained, "All we need
is another 50' of roadway to reach the fourth house on the 57 acre
lot. Requirement (a) says, 'no more than three lots shall be
serviced.' We ask that the Planning Board approve the Special
Permit for the common driveway, and submit to the ZBA a
recommendation approving the variance. As to the variance, we
satisfy the requirements. The size, shape and topography is hj_ghly
unusual. It is not generally found in the district - -huge acreage,
elevation, and large frontage. Literal enforcement would create a
hardship. Without the variance, Ostrowski cannot make use of a 57
acre parcel of land. It is not a personal hardship. Anyone trying
to make lawful use of this parcel would have a hardship. The law
allows you to take into account the use requested when looking at
hardship. I submit that the use will make no difference on the use
of this driveway. A fourth house will make no difference. You
don't have to take as rigorous and precise a position. Detriment
to the neighborhood is not an issue. The house will not be visible
to any other neighbor. I believe we satisfy the requirements for
a variance."
Mr. Verson concluded, "To summarize, this is a proposal to build
one single family house. The driveway has been in existence for it. The
eight years. The Fire Department has no of problem
activity. The plan
ordinance is intended to foster this typ e
does not affect any neighbors."
Mr. Holeva inquired, "Do you need a variance from 6.12(c)? b
Ostrowski replied, "No. There are no blacktopped turnouts,
there are flat, grassy areas almost the whole length of the
driveway for turnouts, plus the Grinnell and Hinckley driveways.
The road is 12 -14' wide." Mr. Holeva then asked, "Is it practical
to put a driveway to Grinnell from Kennedy Road ?" Mr. Verson
replied, "Probably not," and Mr. Crystal added, "Extremely
impractical."
There were no other proponents, and no opponents. The Chair asked
for general comments, and Mr. Feiden remarked, "With four homes
versus three, the issue is emergency vehicles. If the road is
narrow, there's a much greater safety risk. The average grade may
be 11 %, but 100 feet of ice on a 17% slope will prevent access.
The Fire Department memo is generic - -they write the same thing
every time. Roads should be wider and not so steep. On the
Special Permit for side access, technically (i) is not met. The
50' access width is not met. Kathy Fallon's letter says the two 90
degree turns cause the driveway to fail." At this point, Ch.
Beauregard read Kathy Fallon's two -page memo dated February 14,
1991. He also read a February 12 letter from an abutter, Garson
Fields.
`rroo
Northampton Planning Board
February 14, 1991 meeting
Page Three
Mrs. Hale inquired, "The subdivision rules allow a 1,000 foot dead
end street. This is not a street, right? This is a driveway. Can
we have a 16% slope on a private driveway ?" Mr. Feiden replied,
"On a private driveway, it can be as long and steep as they want,
but a common driveway is more like a street - -more people, greater
risk."
Atty. Verson commented, "What the City Solicitor says about no
radius less than eighty feet, I very strongly disagree The City
Solicitor and Planning Department are acting as adversaries. Miss
Fallon suggests there is a new requirement in the zoning ordinance
that isn't there. The zoning ordinance says 'access roadway Our
driveway does not have 90 degree curves. Kathy Fallon says, 'In
some cases having a common driveway serve four rather than three
residences could be considered as inconsequential. In this case,
the driveway is already over 1,700' long. To reach the proposed
dwelling, it must be extended another 600 '.' That is not even
part of the common driveway. What's on the new lot is not common.
She is just plain wrong. It strikes me as a little unusual that
the City Solicitor is telling you the percent slope is no good,
when the Fire Department says it's OK."
Mr. Feiden urged the Board, "If you approve this and accept the
concept of flag lots having this type of access and frontage, you
are allowing lots to be configured with no effective frontage.
This lot is not unique. There are 60 -acre lots with little or no
frontage in that area. This is a fairly common configuration."
Ch. Beauregard inquired, "Is there a feasible way to put a driveway
to the new lot without a common driveway ?" Mr. Verson replied,
"No." Mr. Ostrowski added, "I would not consider making a separate
driveway. It's $30,000 - $40,000 to do that. Chief Jones tells me
that any road in Northampton that a car can get up, his four -wheel
drive tanker can get up." Mr. Verson added, "An 800' road in a
subdivision could have 16 homes on it. The comparisons of this to
a subdivision are wrong. Keep this in perspective."
Ch. Beauregard asked Mr. Ostrowski is he could put turnouts in the
driveway to comply with the ordinance. Mr. Ostrowski replied that
he could, but "It's plowed wide enough in winter for two cars, and
in the summer the edges are flat." He also said he could add signs
for each residence to comply.
Mr. Crystal remarked, "I was a site inspector for the Variance. I
don't see any real problem with the four Special Permits, but I
have mixed feelings about the Variance. Judy brought up a good
point. I have the distinct impression there's a significant
lobbying effort here, especially from the City Solicitor. This
case brings out some flaws in our ordinance. Does the flagpole
have to be straight? I know the road fairly well, I've been up
there quite a few times. We should, as a condition, have them try
Northampton Planning Board
February 14, 1991 Meeting
Paste Four
to meet current requirements. The permit to cross the side lot of
line - -I see no reason to deny. I don't like the configuration e
the flag lots, but won't disagree. The Variance is my problem
upped it a while back from two houses to three. Now they want
four. The impact is minimal, but change the ordinance if it's
inappropriate." Ms. Welter added, "I agree with Andy. if Ch.
a
Beauregard pointed out that the Planning Board had approved
common driveway in the Heritage Hill development having six houses.
Mr. Feiden added, "Regardless of the ZBA granting the variance,
having four homes would be a reason not to grant the Special
Permit." Mr. Larkin commented, "All the objections are about a
driveway that's been there eight years? I agree with Andy that
there seems to be an effort to criticize this application. The
extension of the common driveway is not 600 it's 40 -=50 I
agree with Andy on the Special Permits. As to the Variance, it
makes no sense to agree on the Special Permits and then throw it
all out on the Variance."
Mr. Crystal commented, "The way it's configured could be changed.
Access could be on the flagpole. We might want to consider
conditions limiting the number of people using the common driveway,
or the number of bedrooms. " Mr. Riddle added, "If this were a
subdivision, I'd be against it. This is a group of neighbors, no
hardship, no problems. All the neighbors agree. In this case, I
see no problems." Mr. Ostrowski reminded the Board, "In 1981, the
deed restrictions when they bought the land, they agreed that a
fourth house can be built." Ch. Beauregard added, There's no other
way to utilize this lot. This is the top of the hill. Without a
Variance or other relief, this lot is useless. That's a hardship,
63 acres that can't be used." Mr. Larkin agreed, saying, "It's
very difficult to meet the hardship criteria. Not being able to
use your land is a hardship, and here it's not detrimental to
anyone. I don't think there's a safety issue. I disagree with
Kathy Fallon. I see this as de minimis - -one lot over the limit is
de minimis Mr. Holeva added, "This is the last lot- -there will
be no more. Ms. Welter commented, "I'm not sure I agree with
Bill. The driveway will have to be used for this new house. It's
a long steep driveway. Is this an appropriate place to make an
exception ?" Mrs. Kim interjected, "There is no predilection here.
The Planning Department and Kathy Fallon are objective. I hope
you won't be concerned about a campaign against this application."
Mr. Verson pointed out, "This road has no trees near it until you
get past Ostrowski's house. The subdivision rule on length has a
concern about trees falling and blocking the road. That can't
happen here." Mr. Feiden advised, "You might want to close the
Public Hearing and wait to see what the ZBA does before you vote."
Mr. Holeva then moved to close the Public Hearing. Mr. Larkin
seconded, and the motion passed unanimously." Mr. Crystal
suggested, "Let's discuss the Variance." Mr. Larkin moved to
*4" Wl
Northampton Planning Board
February 14, 1991 Meeting
Paste Five
happen here." Mr. Feiden advised, "You might want to close the
Public Hearing and wait to see what the ZBA does before you vote."
Mr. Holeva then moved to close the Public Hearing. �"� y . Crystal
seconded, and the motion passed unanimously."
suggested, "Let's discuss the Variance." Mr. Larkin moved to
recommend approval of the Variance. Mrs. Hale seconded. Ch.
Beauregard pointed out, "The fourth house will be small, and liven
in by two people, and should not create a traffic problem. " Mr. way of a
Larkin opined, "I don't think sh stand in
were, "No No safety
proper use of his property."
issues," and "The Police and Fire Department have both been up
there." Mr. Crystal commented, "The Fire Department letter is
always the same. It doesn't mean a whole lot. We have app a
common driveway for six lots at Heritage Hill." Ch. Beauregard
emphasized, "Carson Fields' letter should not affect us." The vote
on Mr. Larkin's motion to recommend granting the variance was 5 -0 -3
(Crystal, Welter, Mendelson). Mr. Crystal concluded, "I'd like to
wait for the ZBA to vote on the Special Permits."
l...
1../
Northampton Planning Board
April 25, 1991 Meeting
Page One
The Northampton Planning Board met at 7:00 P. m. on Thursday, April
25, 1991 in Council Chambers, Wallace J. Puchalski Municipal
Building, Northampton. Present were Chair J. Beauregard,
Duseau, J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D.
Welter, J. Holeva, and W. Feiden, Senior Planner.
At 10:20, the Board turned to a discussion of the four Special
Permit applications of Frederick and Alice Ostrowski. There was
correspondence that the ZBA had denied the variance to allow a
fourth house to be served by the common driveway. Mr. Feiden
reported that Atty. Verson did not plan to appeal that decision.
Mr. Crystal moved that the four Special Permit requests be denied.
(They are, specifically, one under Section 6.13 to convert the
Ostrowskis' current lot to a flag lot; another under 6.13 to create
a new flag lot for the proposed house behind the Ostrowskis'
current house; one under Section 6.12 for access to a lot across
other than the front lot line, and another under 6.12 for the new,
extended portion of the common driveway.) The reasons for the
denial are the fact that the Variance request was denied, so there
is no access on the common driveway. Without a variance, the
requests are not eligible for a Special Permit :) the flag is
The plans show more
an adequate access driveway (Section 6.13(7)) for
without the use of the common driveway; 2)
than three houses on a common driveway, which is not permitted
more
(Section 6.12(a))_;. 3) There is not adequate grade for a common
driveway (Section 6.12(c)); 4) Without a common driveway, there
is no appropriate access to the lot except for over the front lot
line. Mrs. Mendelson seconded, and the motion passed 6- 1(Hale)
2(Duseau, Larkin).
Dr. Joseph Beauregard, Chair
l...
City of Northampton, Massachusetts
Office of Planning and Development
City Hali • 210 Main Street
Northampton, MA 01060 • (413) 586 -6950
• Community and Economic Development
• Conservation • Historic Preservation
• Planning Board • Zoning Board of Appeals
• Northampton Parking Commission
Date: May 10, 1991
RE: THE REQUEST OF FREDERICK AND ALICE OSTROWSKI FOR FOUR SPECIAL
PERMITS RELATIVE TO THE PROPOSED DIVISION OF LAND ON KENNEDY ROAD.
Pursuant to the Provisions of the General Laws of the Commonwealth
of Massachusetts, Chapter 40A, Section 15, notice is hereby given
that a decision of the Planning Board of the City of Northampton
was filed with the Northampton City Clerk on the above date DENYING
the requested Special Permits.
If you wish to appeal this action, your appeal must be filed in
Superior Court within 20 days of the date this decision was filed
in the Office of the Northampton City Clerk.
i
Joseph Beaurega d, Chairman
DECISION OF
NORTHAMPTON PLANNING BOARD
At a meeting held on April 25, 1991, the Planning Board of
the City of Northampton voted Six to One, with One
abstention, to DENY the requests of Frederick J. Ostrowski
and Alice L. Ostrowski for four Special Permits,
specifically: a Special Permit under the provisions of
Section 6.13 of the Northampton Zoning Ordinance to convert
to a f lag lot the lot on which the applicants now have a
home; another Special Permit under that same section to
create a new flag lot, the building envelope of which will be
to the rear of the applicants' present home; a Special Permit
under the provisions of Section 6.12 to allow access to a lot
across a lot line other than the front lot line; and another
Special Permit under Section 6.12 to allow the extension of
an existing common driveway to serve the dwelling planned to
be constructed behind the applicants' present home. Present
and voting were Chairman J. Beauregard, N. Duseau, J. Hale,
W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D. Welter and
J. Holeva.
Those voting to DENY the requested Special Permits found:
1. At the same time these four applications were filed, a
request for a Variance from the Provisions of Section 6.12 (a)
was filed with the Zoning Board of Appeals. This request is
to allow a fourth residence to be served by a common
driveway, this being one more than Section 6.12(a) allows.
2. On April 17', 1991, the Zoning Board of Appeals voted
unanimously to DENY this request for a Variance.
3. With the denial of the Variance, there is not an adequate
access driveway for the flag lots without the use of the
common driveway; the plans show more than three houses on a
common driveway, which is not permitted; there is not
adequate grade or turnouts for a common driveway; without a
common driveway, there, is no appropriate access to the lot
except for over the front line.
NWW
-../
NORTHAMPTON PLANNING BOARD DECISION
FREDERICK J. AND ALICE L. OSTROWSKI REQUESTS FOR FOUR SPECIAL
PERMITS.
PAGE TWO
Voting in favor of denying were Beauregard, Mendelson,
Crystal, Riddle, Welter and Holeva. Voting against denying
was Hale. Abstaining were Duseau and Larkin.
The four Special Permits are denied.
Dr. Joseph Beauregard, Chair
Andrew Crystal
Judith Hale
James Holeva
Diane Welter
Marion Mendelson
Nancy P. Duseau
William J. Larkin
Bob Riddle
.../
Northampton Planning Board
April 25, 1991 Meeting
Page One
The Northampton Planning Board met at 7:00 P. m. on Thursday, April
25, 1991 in Council Chambers, Wallace J. Puchalski Municipal
Building, Northampton. Present were Chair J. Beauregard, N.
Duseau, J. Hale, W. Larkin, M. Mendelson, A. Crystal, B. Riddle, D.
Welter, J. Holeva, and W. Feiden, Senior Planner.
At 10:20, the Board turned to a discussion of the four Special
Permit applications of Frederick and Alice Ostrowski. There was
correspondence that the ZBA had denied the variance to allow a
fourth house to be served by the common driveway. Mr. Feiden
reported that Atty. Verson did not plan to appeal that decision.
Mr. Crystal moved that the four Special Permit requests be denied.
(They are, specifically, one under Section 6.13 to convert the
Ostrowskis' current lot to a flag lot; another under 6.13 to create
a new flag lot for the proposed house behind the Ostrowskis'
current house; one under Section 6.12 for access to a lot across
other than the front lot line, and another under 6.12 reasons r the new,
extended portion of the common driveway.) The
denial are the fact that the Variance request was denied, so there
is no access on the common driveway. Without a variance, the
requests are not eligible for a Special Permit: 1) There is not
an adequate access driveway (Section 6.13(j)) for the flag lots
without the use of the common driveway; 2) The plans show more
than three houses on a common driveway, which is not permitted
(Section 6.12(a)); 3) There is not adequate grade for a common
driveway (Section 6.12(c)); 4) Without a common driveway, there
is no appropriate access to the lot except for over the front lot
line. Mrs. Mendelson seconded, and the motion passed 6- 1(Hale)
2(Duseau, Larkin).
Dr. Joseph Beauregard, Chair
i
Ir• -
1W.0
1.) Special Permit under Section 6.13 for a flag lot for the
existing house lot.
2.) Special Permit under Section 6.13 for a flag lot for the new
house lot.
3.) Special Permit under Section 6.12 for vehicular access to the
new house lot over the side lot line.
4.) Special Permit under Section 6.12 for use of a common driveway
in connection with the new house lot.
5.) variance from the provisions of Section 6.12(a) to allow a
common driveway to service a total of four houses rather than three
houses.
y� i y } I M i 2 5 1,1 1 2 i
r./
The requirement (a) is not satisfied and a Variance from it has
been requested.
Requirement (b) is clearly satisfied, as the driveway has been in
existence for seven years. For the same reason, the existing common
driveway should be considered to be of suitable construction. It is
asphalt, wide enough for two cars to comfortably pass and is acceptable
to the Fire Department. The driveway was lawfully constructed under the
regulations in existence at the time of its construction.
The general conditions for issuance of a special permit, at Section
10.10, are also satisfied with respect to all three Special Permit
applications. The use as single- family residence on a flag lot, with
access over a side lot line and on a common driveway is appropriate for
the Rural Residential district. The addition of one more house. on a
57 -acre parcel with private water and sewer, would hardly overload any
municipal systems or create traffic congestion. The use would maintain
in every respect the character and integrity of the area and be in
harmony with the intent of the Ordinance..
N%..'
. .
Requirements a.), b.), and c.) are not satisfied by the locus, but
those requirements are deemed satisfied by the granting of a permit for
access over a sideline under Section 6.12, and such a permit has been
applied for simultaneously with this application.
Requirements (d), (e), Cf), (g), and (h) are ail satisfied, as is
clearly show„ on the Site Plan submitted with this application.
Requirement (i) is satisfied because the driveway has been in
existence for approximately seven years. and the easements are set forth
in a the Declaration of Restrictions and Easements pertaining to the
subject land, dated May 8. 1981, and recorded in the Registry of Deeds
at Book 2222. Page 152. The relevant portions of that document are as
folows:
B. Maintenance The cost,cf maintenance and repair of
the driveway, including removal cf snow and ice. from
Kennedy Road to a point on the driveway parallel with the
most westerly portion of the most westerly residence
constructed on Lots 2 and 3 shall be borne equally by the
owners of Lots 2, 3 and 5, provided however, that
[Ostrowskil shall be solely responsible for removal of snow
and ice from the driveway for so long as [Ostrowskil owns
Lot 5. or any portion thereof.
C Easements Over Driveway Easements are granted for
the benefit of all Lot Owners, as are Necessary to enable
Owners, such and their - invitees and guests, to pass and
repass on foot or by vehicle for the purpose of gaining
access to their lots, or on foot for the purpose of gaining
access to the Woodland. The [Ostrowskil shall also have the
right to grant easements to utility companies as necessary
for the construction and servicing of utility lines.
Requirement (j) is satisfied because the driveway. as stated above.
has been in existence for seven years, has been o= adequate design and
construction to serve the existing three houses, and is acceptable to
the Fire Department.
Requirements (k) and (1) are satisfied. No provisions for drainage
or storm water runoff are necessary because of the size and locations of
the lots.
The general conditions for issuance of special permits, at Section
10.10 of the Ordinance, are satisfied. See the discussion of those
conditions attached to other applications.
8. SPECIAL PERMIT CRITERIA
Reo_uirements a.), b.), and c.) are not satisfied by the 'locus, but
pe
t j f ��.1 :. r: 'i l for
those requirements are deemed satisfied by the g.anking
access over a sideline under Section 5.12, and such a permit has been
applied for simultaneously with this application.
i ( ` =` Cg). a .^ Ch) are all satis_'.e as is
eauire ents .d,, e.. C.,,
clear sho'zn on the Site Plan submitted with this application.
Requi (i) is satisfied because the driveway has been in
-V re cot -o- , '
exi
szence :or appro:..mately seven yea: and the easemen
in a the Declarat ion of Restrictions and Easements pertaining to the
sub;ect lan'
dated May 8, 1981. and recorded in the RegistrJ of Deeds
at Bock 2222 Page 1:.2. The relevant port ions Of that QGcument are as
f011C- -:s.
5 Maintenance. The cost of maintenance and repair cf
the dLriveway, including removal of snow and ice. from
Kennedy Road to a point on the dri vewav oara with the
most w esterly portion Of the most westerly residence
constructed on Lots 2 and 3 shall be borne equally by the
owners of Lots 2, 3 and 5, provided however, that
[Ostrowskil shall be solely responsible'for removal of snow
and ice from the driveway for so long as 1 0strowski3 owns
Lot 5. or any portion thereof.
C Easements Over Drivewa Easements are granted for
the benefit of all Lot Owners, as are necessary to enable
such '�;W ners, and their invitees and guests. to pass and
repass on foot or by vehicle for the purpose of gaining
access to their lots, or on foot for the purpose of gaining
access to the Woodland. The [Ostrowskil shall also have the
right to grant easements to utility companies as necessary
for the construction and servicing of utility lines.
Requirement (ii is satisfied becac:se the driveway. as stated above.
has been in existence for seven years, has been of adequate design and
\.r 1..0,
construction to serve the existing three houses, and is acceptable tc
the Fire Department.
Requirements (k) and :l) are satisfied.
No provisions fc: urai;,ace
or storm water runoff are necessary because of
the size and lc:.ations c:
the lots.
The general conditions for issuance of special permits. �t Sectic
i0.10 of the Ordinance. are satisfiee. See tine discussion of .-cse
conditions attached to other applications.
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