10B-075 38 water zoningDo Not Write In �
Applicatio slumber:
Fee Pd. Rec'd. ZBA Maps) Parcel (s)
APPL 1, R r `Y,1VIA4DE TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS:
1. Nal a of Applicant '�
'
Address '3 -*'
2. Owner of Property
Address
3. Applicant is: 'Owner; DContract Purchaser; 01-essee; ❑Tenant in Possession.
4. Application is made for:
'VARIANCE from the provisions of Section ^ Z ' page 4o of the Zoning Ordinance of the
City of Northampton.
El SPECIAL PERMIT under the provisions of Section page of the Zoning Ordinance
of the City of Northampton.
❑OTHER:
5. Location of Property -3 k Q
the Wes+ side of
Sheet No. 1 J r3
e, e being situated on
Street; and shown on the Assessors' Maps,
Parcels) 7 S
6. Zone t ) 03
7. Description of proposed work and /or
he 4.4a4V,6V% - 7 -z .4 7 Y
[
8-(a) Sketch plan attached; JB Yes 0 No
(b) Site plan: 0Attched 0Not Required
9 Set forth reasons upon which application is based: �Wrrrs dX�'s7 0%x.7 (,d�S 7 �w 7s
1CC rcj#+C Lo-r- ? t-f! 11. JPI t mil kl t .t- �B.Jn.f t /yG1 6u �..vr. drT�
G�..� Gins �D Pv rin n,4 41t 4-L., L.arrS_
r
10. Abutters (see instructions; list on reverse side of form).
12. 1 hereby certify that information contained herein is true to the best of my knowledge.
..Date � (�o1�q A ppli ca nt's Signature
lmmlwwm�
APPL 1, R r `Y,1VIA4DE TO THE CITY OF NORTHAMPTON ZONING BOARD OF APPEALS:
1. Nal a of Applicant '�
'
Address '3 -*'
2. Owner of Property
Address
3. Applicant is: 'Owner; DContract Purchaser; 01-essee; ❑Tenant in Possession.
4. Application is made for:
'VARIANCE from the provisions of Section ^ Z ' page 4o of the Zoning Ordinance of the
City of Northampton.
El SPECIAL PERMIT under the provisions of Section page of the Zoning Ordinance
of the City of Northampton.
❑OTHER:
5. Location of Property -3 k Q
the Wes+ side of
Sheet No. 1 J r3
e, e being situated on
Street; and shown on the Assessors' Maps,
Parcels) 7 S
6. Zone t ) 03
7. Description of proposed work and /or
he 4.4a4V,6V% - 7 -z .4 7 Y
[
8-(a) Sketch plan attached; JB Yes 0 No
(b) Site plan: 0Attched 0Not Required
9 Set forth reasons upon which application is based: �Wrrrs dX�'s7 0%x.7 (,d�S 7 �w 7s
1CC rcj#+C Lo-r- ? t-f! 11. JPI t mil kl t .t- �B.Jn.f t /yG1 6u �..vr. drT�
G�..� Gins �D Pv rin n,4 41t 4-L., L.arrS_
r
10. Abutters (see instructions; list on reverse side of form).
12. 1 hereby certify that information contained herein is true to the best of my knowledge.
..Date � (�o1�q A ppli ca nt's Signature
OP
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DECISION OF
NORTHAMPTON ZONING BOARD OF APPEALS
At a meeting held on June 28, 1989, the Zoning Board of
Appeals of the City of Northampton voted 2 -1 to DENY the
Application of Beth and Arthur Johnson for a Variance from
the Provisions of Section 6.2 to allow relocation of the
boundary separating Parcels 74 and 75 of Sheet 10D of the
Northampton Assessor's Maps, at 38 Water Street, Leeds.
Present and voting were Chairman Robert C. Buscher, Dr. Peter
Laband, and M. Sanford Weil, Jr.
The Findings were as follows:
Mr. Weil was willing to find that the Variance criteria of
topographical uniqueness and hardship had been met, and that
to alter the actual boundary to conform to the "artificial"
boundary would not be at all detrimental to the neighborhood.
Dr. Laband agreed that the topography was strange, but could
not find that literal enforcement would create a hardship.
Ch. Buscher agreed that there was no hardship, and found that
the house is not any less salable if the Variance is denied.
The Board found that, because the proposed subdivision would
create a nonconforming lot, the Planning Board could not sign
a "Form A- Approval Not Required" plan unless a Variance were
granted. A majority of the Board agreed that the desired end
could be achieved by means of easements, and that a Variance
was not necessary.
The Board voted 2 -1 (Weil) to deny the requested Variance.
Robert C. uscher, Chairman
Dr. Peter Laband
l
M. Sanford Weil, Jr.
...r
Northampton Zoning Board of Appeals
June 28, 1989 Meeting
Page One
The Northampton Zoning Board of Appeals met at 6:30 p. m. on
Wednesday, June 28, 1989 in Council Chambers, Wallace J. Puchalski
Municipal Building to announce a decision on the Application of
Beth and Arthur Johnson for a Variance from the Provisions of
Section 6.2 to allow relocation of the boundary separating Parcels
74 and 75 of Sheet 10D at 38 Water Street, Leeds. Present and
voting were Chairman Robert C. Buscher, Dr. Peter Laband, and M.
Sanford Weil, Jr.
Dr. Laband moved the minutes of the May 31, 1989 meeting be
approved without reading. Mr. Weil seconded, and the motion passed
unanimously. The Chair pointed out that we are dealing with two
nonconforming lots; one with a side setback violation, and the
other with that problem as well as an insufficient frontage problem
and insufficient square feet.
Mr. Weil said, "I'm willing to argue that the Variance criteria are
met. There's one very narrow, deep lot. The topographical problem
is its size and narrowness, and the hardship is that they can't
sell it as -is. To do what the Applicant wants is not more
detrimental to the neighborhood."
Dr. Laband commented, "The power to grant Variances is to be used
sparingly. If we deny someone, it's damn rare that the courts will
overturn us. If we grant, the courts will shoot us down on our
hardship conclusions. I can certainly agree that the topography
is strange - -two houses on two adjacent lots. Derogate? Detriment?
I have no problem. The Planning Board found no hardship. I agree.
How does Bob feel? Can he convince me? The two houses have
existed for years - -'go ahead and change it and the hell with the
Zoning Ordinance ?'"
Ch. Buscher asked Larry Smith, Senior Planner, "Anytime you
subdivide a lot, both lots must be conforming, right ?" Mr. Smith's
response was that a new "Form All is required, and the frontage,
etc. must conform. Ch. Buscher responded, "We have a lot that's OK
except for the side setback. The other lot fails on size, side
setback and frontage. We are asked to take a hunk out of one and
make the other more conforming because it's bigger." Mr. Smith
replied, "The Planning Board can't sign a 'Form A' without a
Variance granted."
Mr. Weil asked Mr.. Smith, "If we grant the Variance, the Planning
Board will sign the 'Form A'?" Mr. Smith replied, "Yes. It
doesn't meet the criteria, but no one's going to appeal. But you
set a bad precedent."
Dr. Laband and Ch. Buscher agree that what the Applicant is trying
to accomplish by a Variance could probably be accomplished by
easements. Dr. Laband reiterated, "I'm ill -at -ease with the
NWOO ..../
Northampton Zoning Board of Appeals
June 28, 1989 Meeting
Page Two
hardship issue." .,,
Ch. Buscher added, "I can't help but agree with Sandy [Mr. Weil].
It's a ridiculous result that they can't do what they want, but
there is the alternative of easements to accomplish this. I have
to agree with Peter." Dr. Laband inquired, "What are we willing
to accept for hardship ?" Ch. Buscher replied, "I'm not convinced
there's a hardship. The house is not any less salable, and an
easement can do this." Dr. Laband agreed that "this is not
essential."
Dr. Laband then moved that, "because I see no hardship, and the
applicant has other means to accomplish the goal, I move the
request for a Variance be denied. I agree the law is inconsistent,
but a Variance is not the proper approach." Ch. Buscher seconded,
and the motion passed 2 -1 (Weil).
Also present, in addition to those mentioned, was R. J. Pascucci,
Board Secretary.
Robert C. Buscher, Chairman
\.. .MO
Northampton Zoning Board of Appeals
May 31, 1989 Meeting
Page One
The Northampton Zoning Board of appeals met at 9:40 p. m. on
Wednesday, May 31, 1989 in Council Chambers, Wallace J. Puchalski
Municipal Building, to conduct a Public Hearing on the application
of Beth and Arthur Johnson for a Variance from the provisions of
Section 6.2 to allow a relocation of the boundary separating
Parcels 74 and 75 of Sheet 10D, at 38 Water Street, Leeds. Present
and voting were Chairman Robert C. Buscher, Dr. Peter Laband, and
M. Sanford Weil, Jr.
Ch. Buscher opened the Hearing by reading the Application, the
Legal Notice, a memorandum from the Planning Board, and the Table
of Dimensional Regulations. This is a URB Zone, where a single -
family dwelling needs 10,000 SF and 75' of frontage. It was
pointed out that the two parcels in question have 86 +' and 47.25'
of frontage respectively, and that the 86' parcel will go to 75
and the 47' parcel will enlarge to 59.27 Both lots exceed 10,000
SF, and there is a side setback violation.
Atty. Joanne DeLong appeared to represent Beth Johnson, and stated,
"What presently exists at 32 and 38 Water Street is a nonconforming
lot at 38, where Beth now lives after a divorce. She told how
the Johnsons first bought 38, and later bought 32. They created
an artificial boundary between the lots by using fencing,
plantings, terraces, etc. to give the illusion that the lots were
of similar size. They now want to have this artificial boundary
become the legal boundary. Ch. Buscher asked, "Since both lots
were in common ownership, was one lot created ?" Atty. DeLong
replied, "I'm on the Zoning Board in Hadley. I do not believe we
have created one lot. #32 has been purchased, and the new owner
agrees with what is wanted." Ch. Buscher reiterated, "When two
lots are in common ownership, they are merged, and can't be
subdivided unless they are conforming." Atty. DeLong replied, " #32
has been sold, with the proviso that if the variance is granted,
32's owner will turn over to 38 the part of the lot within the
artificial boundary." Ch. Buscher said, "We have two lots, one
nonconforming, both having dwellings, one was pre- existing
nonconforming and one conforms. In my opinion, a Variance is
needed to convey 38."
At this point, Atty. DeLong loudly and strenuously disagreed with
that assertion, and heated words were exchanged between her and the
Chair, who later apologized. Dr. Laband agreed with Ch. Buscher
that, "with common ownership, whether with a house or without a
house, it makes one lot." He asked Atty. DeLong to address the
variance criteria, the matter would be taken under advisement, and
the opinion of the Assistant City Solicitor would be sought.
Atty. DeLong said to the Board, "You have to look at the property
and recognize that we are improving the neighborhood, and doing
nothing to derogate. We are taking the smallest lot on the street
1 %W11 Iwo/
Northampton Zoning Board of Appeals
May 31, 1989 meeting
Page Two
and making it larger, which is in the spirit of the lot -size
averaging concept. Hardship here goes to the shape of the land.
You can consider what exists at the present. Don't get caught up
in who owns /owned what. Mrs. Johnson wants to sell the house at
38. Because of the topography that exists, a house 5 -6' from the
property line, you should consider the house like a large boulder -
-it is part of the topography. If the property line is 5 -6' from
the house, that's a hardship, and can be remedied. The trees,
shrubs and patio are all part of the topography. Having this
artificial boundary creates a hardship for the owner of 38."
Bruce Palmer, the Building Inspector, suggested that the parties
look at Section 40A, Section 6. Ch. Buscher suggested that Section
9.6 of the Zoning Ordinance be looked at. No one else had any
comments.
Dr. Laband said he wanted to view the site, and moved the Public
Hearing be closed and the matter taken under advisement. He said
he would see Miss Fallon for her opinion. 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
1
A person owns two abbuting lots, each with a house on it. For purposes
of convenience we will call the larger lot "A" and the smaller lot "B ". All
n onconformities are pre existing.
Lot "A" structure is non conforming due to a side line deficiency. Otherwise
the lot conforms in all respects.
Lot "B" is non conforming due to sideline, frontage and area deficiencies.
The person sells lot "A" to an unrelated party and retains lot "B ".
Question: Is such a sale legal?
Subsequently, the person who retained lot "B" wants to sell it. To increase
its marketability he proposes to buy back a portion of lot "A ".
The proposed purchase does not affect the conformity of lot "A" and
would correct the conformity of lot "B" as to area and sideline requirements.
The frontage deficiency, which is pre- existing nonconforming, would remain.
Question: Would this purchase be legal? Would it require ZBA approval? If
so in what form?
Question: If the above purchase did not include land which constitutes
the front of the property. would a variance be required?
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CITY of NORTHAMPTON OFFICE of PLANNING and DEVELOPMENT
MEMORANDUM
TO: M. Sanford Weil, Jr.
FROM: Lawrence B. Smith, Senior Planner
SUBJECT:
Johnson Variance Request, Water Street
DATE: June 19, 1989
FILE:
This is in response to your questions of June 8th.
Non - conforming lots under "common ownership" are only combined
to form a "conforming" lot if one or both of those lots are vacant,
and even then there are certain time periods that are involved.
In the case of the Johnson's lots on Water Street in Leeds,
each of the lots has an existing house on it, so each lot, as they
exist today, is treated as individual lots. Each lot can be
independently sold, as it exists today, as an individual lot.
Section 6.4 of the Northampton Zoning Ordinance states that
"No lot, whether it complies -with the provisions of this Ordinance
or not, may be divided so as not to conform with a provision of
this Ordinance."
Whenever a "new" lot is created, in order for it to be legal
lot, it must conform to the zoning standards in effect at the time
that it is "created ". If Lot #1 of the Johnson's wants to annex
a portion of Johnson's Lot #2 then both lots, because they will now
technically be two "new" lots, must conform to all of the zoning
requirements that are now in effect. If both lots do not comply,
in all respects with the current zoning provisions, than a Variance
must be received for those standards that are not in compliance.
�mope
Northampton Planning Board
May 25, 1989 Meeting
Page Six
Mr. Smith pointed out that "This is an i rmediate project and
needs site plan review. This site plan woefully lacking. How
about lot size averaging instead of tr ng for a Variance ?" Mr.
Hamilton said he had not conside the lot size averaging
approach, and asked that, "Since t e's so little change to the
house, do we need a full - blown si plan ?" Mr. Smith replied, "If
you want waivers, ask for them." r. Crystal, the site inspector,
was ready to move for denial o he Variance. He pointed out that
there is only one curb cut this house and the one next door
(easement), and that it i nadequate for access /egress for the
number of cars being co mplated. He went on, " I don't think
you've got the room for third apartment. It's not a large site.
Adding a third apartm makes it an untenable site for parking."
He moved for denial the Variance, and added that "they've got
a long way to go meet the criteria for the Special Permit as
well." Mrs. Me elson seconded. Mr. Holeva agreed with Mr.
Crystal and a d, "We should be consistent on not granting
Variances." s. Hale felt that under the circumstances, she
leaned towa granting the variance. Mr. Hamilton stressed the
need for artments in Northampton, and asked that the Board
withhold onsideration on the Variance "so I can check lot size
averag' . " The Board voted to recommend denial of the Variance,
the v e being 5 -1 -1 (Hale against, Duseau abstaining). Mr.
Ham' on asked to delay the vote on the Special Permit as well, but
Mr Crystal pushed for a vote. He moved to recommend denial of the
cial Permit specifically because of inadequate parking and
ccess. Mrs. Mendelson seconded, and the motion carried 5- 1- 1(same
as above).
At 10:25, the Board turned to the Application of Beth and Arthur
Johnson for a Variance "to change frontage boundary between Lots
75 and 74" on Water Street, Leeds. Atty. Joanne DeLong appeared
for Beth Johnson. She pointed out that in 1977 the Johnsons bought
the "right -hand lot," and in 1984 they purchased the "Left -hand
lot," to rent out the house on that lot. In order to make the two
lots appear to be similar in size, plantings and fences were
installed along an "artificial lot line." Because the Johnsons got
a divorce a year or so ago, the Applicant is now trying to propose
changing the actual lot line to follow the artificial line. Ms.
DeLong conceded that lot size averaging would not work here. She
added, "If they don't get the Variance, the thousands of dollars
spent on shrubbery will have to be dug up."
Mr. Crystal, the site inspector, commented, "It's a nice street
with river frontage, and the shrubbery is nicely done. What's the
problem? The plantings enhance the value of the property and
belong to the new owners of the lot. You haven't demonstrated
substantial hardship. There are lots of alternatives. I see no
reason to grant a Variance." Ms. DeLong reiterated her argument
Northampton Planning Board
May 25, 1989 Meeting
Page Seven
that all the money spent on plantings and fences "will be
forfeited." She said she felt "the variance criteria are met.
Substantial hardship is the investment of dollars and effort - -if
they can't conform the legal boundary to the artificial boundary.
they forfeit the investment. This is a benefit to the neighborhood
and should be preserved." Dr. Beauregard said he could not see a
good reason for a Variance, and Mr. Crystal moved to recommend
denial. Mr. Holeva seconded, and the motion passed 6 -1 (Arnould).
approval. Ch. Duseau read an April 25 letter from the DPW.
Smith said that Mr. Hanley's plans have been approved, a L r of
Credit exists, and all that is needed is a covenant a added,
"Until they get the covenant, the DPW doesn't t ' work should
proceed, and they recommend we not sign the A." Mr. Hanley
said he'd like to get the Form A's approv i.thout the covenant,
"but if I must, I will." Mr. Smith ommended that the Board
disapprove the Form A's, and autho ' e Mrs. Mendelson or Mr. Gare
to sign approval for the Board the DPW approves the covenant.
Coun. Brooks asked the Bo to be sure the covenant includes
correction of the drain problem that has been created. Mrs.
Mendelson moved to ' approve as Mr. Smith suggested. Dr.
Beauregard seconde nd the motion passed unanimously.
Ch. Duseau t read a letter dated May 24 from Asst. City
Solicitor F on, relating that all the documents required by the
approval the Sandalwood Estates Subdivision have been received
and app ed by her. Dr. Beauregard moved that the developer be
notif' that he has satisfied the requirements of the decision.
Mrs ale seconded, and the motion passed unanimously.
meeting adjourned at 10:50 p. m.