Ryan LetterCarolyn Misch <cmisch@northamptonma.gov>
To Planning Board: Please delay all decisions on/activities at 170 Federal St
1 message
Bill Ryan <billryanenergyarts@me.com>Wed, Dec 9, 2020 at 4:04 PM
To: Carolyn Misch <cmisch@northamptonma.gov>, Jonathan Flagg <jflagg@northamptonma.gov>, wfeiden@northamptonma.gov, mayor@northamptonma.gov,
jimnashcitycouncil@gmail.com, ajarrett@northamptonma.gov, kfoster@northamptonma.gov, jthorpe@northamptonma.gov
TO: Northampton Planning Board members
CC: Carolyn Misch, Jonathan Flagg, Wayne Feiden, Mayor David Narkewicz, members of the City Council Committee on Community Resources (Jim Nash, Alex Jarrett, Karen
Foster, and John Thorpe)
FR: Bill Ryan, 129 Warner St
RE: 170 Federal St: Questions and concerns re your Site Plan Review
Members of the Planning Board, thank you for your consideration of my questions and concerns, and for the time you give to the City.
My name is Bill Ryan. I live at 129 Warner Street, a few blocks up the hill from 170 Federal.
I’ve carefully reviewed the history of the current 170 Federal St project now up for your consideration for a shared driveway.
I have some key questions and concerns that I think you should be aware of, and get answers to, before you make your decision on the driveway. I’ve
laid them all out below for your consideration.
In light of all these questions and others my neighbors have raised, I ask you to please delay all decisions about and activities related to the 170
Federal Street project, pending getting answers - for you and the public - to all such questions.
This includes your decision about the shared driveway, and even your asking City officials about their power to halt ongoing contruction of the
house on Lot 2, which is now 8 Warner St., pending your further review.
I’m contacting you to make this request, because I often walk by 170 Federal on my way to and from my studio downtown where I teach tai chi and qigong for a living.
During the last couple of weeks I’ve been watching the construction proceeding on the two new houses along Warner Street. Late last week I was appalled by the height and
massiveness of the structures arising in comparison to the neighboring houses.
I consulted with other neighbors who had been expressing concerns, and decided I needed to learn more about what was happening and why.
So in the last several days I’ve devoted significant time in trying to explore these questions.
Please note that I am not a lawyer, and not an expert in this field. I have been a tai chi teacher full-time since 1992. However I do have some training in fields related to what’s before
us. I have a Masters Degree from MIT in Technology and Policy, and I spent the 1980’s working as an expert at the intersection of law and engineering for environmental groups
advocating for change through state legislatures, first in Massachusettts and then other states.
Also please note that I fully support well-considered infill development in Bay State, as long as it’s done in manner harmonious with the existing features of the neighborhood.
After my review of all of the documentation of this process that I’ve found so far, I’m left with the following questions, and I hope you are too.
I know this a very long email, but it’s been a complicated process, and the details are important. I’ve highlighted the most important questions and findings so you can
skim through it.
1. Why weren’t you - and the neighbors - asked to review this whole development project - that is laid out so clearly on the Site Plan - as a whole?
Why have pieces of it come to to you in dribs and drabs?
Looking at this process as an outsider, it appears to me that this may have happened because the developer - John Handzel and his company Nu-Way Homes - has engaged in a bit
of sleight of hand to secure certain advantages.
Here’s how the history goes as far as I’ve been able to discern.
May 21. The developer ’s surveyor completed a Plan of Land for the 170 property for use in an ANR determination. It shows how the developer plans to reorganize the two
existing lots he bought from the owner of 170 into 3 lots. There is a note on the Plan that indicates the developer’s intention to raze the existing garage. The Plan designates the new
lots as Lots 1 and 2, and the much larger lot with the original existing house as Lot 3, as they are also designated on the Site Plan before you now. (Please see the date-ordered
attachments below for this Plan, which you all then reviewed on June 11.)
May 28 The developer completed his purchase of the property, according to Zillow.
https://www.zillow.com/homes/170-Federal-St-Northampton,-MA,-01062_rb/57021527_zpid/
June 5: The developer was granted a Building Permit “to raze the garage and existing out building” according to the developer ’s application. (see the date-ordered attachment
for this permit). As you can see from the Site Plan before you which includes that garage and the "shed", those were never razed.
June 11: At your Planning Board meeting that night, Planning and Sustainability Department Assistant Director Carolyn Misch presented the May 21 Plan of Land from the
developer’s surveyor for your consideration for an ANR.
I watched the YouTube video of the meeting (https://www.youtube.com/watch?v=X7EPU1O7pIE) for the ANR discussion (that begins at time stamp 1:23:41). She explained to those
of you who were present that the two new lots would be established, and that the developer had removed the existing garage, which it turns out he actually didn’t do. Perhaps she
was given the wrong information.
She then pointed to the existing driveway, which is shown on the Plan as located primarily in the new Lot 2 with just a little overlap into Lot 3 (where the original existing house is
located). She said:
“they’ll have to relocate this [existing] driveway because right now the way it’s showing is as a shared driveway, but there is a note on the plan indicating that, because
otherwise they don’t have access from the street, so anyway that’s going to be taken care of. So it’s just for these two new lots…”
You all authorized the ANR without discussion.
June 24: The ANR authorized Plan of Land was recorded with Hampshire District Recorded/Registered Land (masslandrecords.com) for Nu Way Homes Inc for Warner Street
and Federal Street. (Please see the date-ordered attachments below for this version of the Plan.)
There is a note on this authorized Plan that says:
“No shared driveway permit has been granted and Lots 2 & 3 must be served by separate driveways unless additional permitting is obtained.”
So the answer to Question 1 seems to be that your June 11 hearing and ANR authorization was the key turning point toward a piecemeal approach to this
whole project, rather than your Board reviewing this development project as a whole.
If you had not authorized the ANR, wouldn’t the developer have had to come back to you with a reason why you should support it and perhaps a site plan? Of
course, that would have triggered the public review process that we are undergoing now. Is it reasonable to assume that the developer wished to avoid that as
long as possible?
So given the lack of public notice requirements for Zoning and Building Permits in Northampton, the neighbors and others in the interested public like me
didn’t get a chance to try to influence how the two houses were going to be built.
And the developer was free to go about getting the Lot 1 and 2 houses in place.
2. How did the Lot 1 and Lot 2 houses get approval to be built, when to me - and others - those houses don’t meet the Table of Use and
Dimensional Regulations for the URB district, which is the applicable zoning for the 170 Federal property?
https://ecode360.com/attachment/NO2226/NO2226-350g%20Table%20of%20Use%20and%20Dim%20Regs%20URB.pdf
First, let’s look at the houses through the lens of those requirements.
According to the Description in the first section of this Table "New homes should consist of units that maintain orientation, rhythm, setback pattern and street frontage green
patterns of the surrounding block face”.
I invite you to walk down or up Warner Street where these houses are now being built, and decide whether you agree that these new homes meet this description. I find it hard to
believe that many people would say yes.
For example, Standard 3 of the Table requires that "For new buildings, setback, scale, massing should fit within the block face."
The picture used to illustrate Standard 3 is:
“Doesn’t Fit” is exactly what I think of when I see the two new houses which are so big in massing and height compared to those around them, rising up of what used to be
an open green field.
So who decided that these houses met the standards of the Table and allowed them to go forward?
Now, let’s now look at those houses through the lens of the permits required to build them.
As you all know better than I do, according to the Zoning Code, it’s the Building Commissioner who decides on and issues these permits. (Zoning Code, Section 350-4.3) I
guess he or she has a better sense than me of the standards, although how anyone can make the judgements called for in the Table based on the minimal information provided in the
Zoning Permit application form is difficult to understand.
As far as I can tell, the process the Building Commissioner goes through to permit a project in our URB district involves two steps: 1) issuing a Zoning Permit to say a builder’s
proposal meets the Zoning Code, and 2) issuing a building permit.
The requirement for a Zoning Permit is established in the Zoning Code in Section 350-4.4 Zoning Permit Required. The section seems to me to be extremely clear that all projects
such as the two homes now being built must obtain a Zoning Permit either before or simultaneously with a Building Permit:
"It shall be unlawful for any owner or person to erect, construct, reconstruct, or alter a structure or change the use or lot coverage, increase the intensity of use, or extend or
displace the use of any building or other structure or lot without applying for and receiving from the Building Commissioner a zoning permit therefor. For purposes of
administration, such permit and application procedure involving a structure may be made at the same time and combined with the permit required under the Building Code."
Nowhere in the Code have I found any exceptions to this requirement, although of course I may have missed something or perhaps there is case law that dictates otherwise. If you
know of such exceptions, please let me know.
So what happened with the permits required for the houses on Lots 1 and 2?
When I requested via email from the Building Department copies of the Zoning Permits and Building Permits for all projects related to the 170 Federal St project, including anything
new along Warner St, they sent me permits which were issued as follows.
July 27: The Building Commissioner issued the developer a Zoning Permit for Lot 1, which is now 12 Warner Street. (Please see the date-ordered attachments below for this
Permit,)
September 25: The Building Commissioner issued the developer a Building Permit for Lot 1, 12 Warner St. (Please see the date-ordered attachments below for this Permit,)
October 22 #1: The Building Commissioner issued the developer a Building Permit for Lot 2, 8 Warner St. (Please see the date-ordered attachments below for this Permit,)
However, the Building Department did not send me a Zoning Permit for Lot 2.
My question at that point of my investigation was where was the required Zoning Permit for Lot 2, 8 Warner Street?
Answer: There is a Zoning Permit, but it was issued by the Building Department for an unspecified “additional lot" at 170 Federal St on June 2,
2020, 9 days before the Planning Board approved the ANR creating the lots.
I finally obtained this Zoning Permit by asking the Building Department whether there was a Zoning Permit specifically for 8 Warner. The answer that I received from the Building
Department was, to quote directly from the email:
"A zoning relief was not required for 8 Warner. The building permit was all that was required. If you need further information on this one please email Carolyn Misch
...cmisch@northamptonma.gov”
So on Tuesday morning, December 8, I emailed Ms. Misch to find out the answer. She nicely wrote me back and explained the difference between a Zoning Permit and “zoning relief”.
She also simply stated that “A zoning permit was issued for #8 Warner.”
So I wrote the building department again and asked for the Zoning Permit that Ms. Misch said had been issued.
They then sent me the Zoning Permit mentioned above for the “additional lot” at 170 Federal Street, which was issued to the developer on June 2. Thinking that perhaps there had
been a mistake, I wrote again and asked for the Zoning Permit for 8 Warner. I received an email back just a short time ago that said they couldn’t help me anymore, and that they had
sent a message to Ms. Misch.
Former Building Commissioner Louise Hasbrouck then kindly wrote and sent me what he had for these properties, and the Zoning Permits were the same as I received from the
Building Department.
So absent any further information, I have to assume that the June 2 Zoning Permit is the permit that Ms. Misch said had been issued for 8 Warner. I’ve attached below that permit for
your review as 2020-06-02 Zoning Permit 170 Federal 23D-066 (3).
This Zoning Permit was issued on June 2 for what the developer’s description in his application at Question 6 was simply:
“To create an additional lot at 170 Federal St. with a shared driveway off of Warner St. The created lot will exercise ZLL Build."
Question 12 of the application is where the applicant is supposed to provide information about the lot and the proposed buildings and specifies that “ALL INFORMATION
MUST BE COMPLETED, or PERMIT CAN BE DENIED DUE TO LACK OF INFORMATION.
The developer provided no information for this question.
The Building Department approval sheet’s stated Type of Construction was similarly written: ZPA - CREATE AN ADDITIONAL LOT WITH SHARED DRIVEWAY OFF OF WARNER
ST - LOT WILL CREATE ZLL BUILD.
This Zoning Permit specifies that Additional Permits are required, and that a Planning Board Permit is required under Section 350-2.1 Driveway Shared.
There is a handwritten note that says “Need copy ANR Plan"
So the Zoning Permit for Lot 2 was approved for an unspecified Additional Lot somewhere on the land at 170 Federal with no description of that lot
and no description of what would be built.
It was approved on June 2, just after the developer purchased the land and before the Planning Board authorized the ANR on June 11.
My question is how was such a Zoning Permit ever allowed to be issued? And why wasn’t it at least reissued after the fact with some description
of the buildings to be built?
All I can say is that at least the Zoning Permit did make clear that a Planning Board permit was required for the shared driveway. But doesn’t it also
seem clear that there was an abdication of responsibility by the Building Department Commissioner to evaluate what would be built by the
standards of the Zoning Code for the URB district?
I guess the Building Commissioner now could argue that by issuing a proper Zoning Permit for 12 Warner he conducted such a review. But why
didn’t he issue a similar Zoning Permit for 8 Warner and directly address the issue of the shared driveway and the need for the permit from the
Planning Board?
October 22 #2: The developer filed for a Planning Board Special Permit with the Site Plan before you.
Do you think it was a coincidence that the developer waited until he had the #8 Warner Building Permit and on the same day applied for the Site Plan review?
What does seem clear to me is that the events as they unfolded gave the developer time to get the work started on 8 and 12 Warner before the Site Plan
process and its public review. Do you agree?
My big question here is why was 8 Warner given a Building Permit and allowed to proceed with building when it was made very clear in the Note
on the ANR Approval from June 11 that, to repeat from above:
“No shared driveway permit has been granted and Lots 2 & 3 must be served by separate driveways unless additional permitting is
obtained.”
The additional permitting required is only now proceeding before your Board.
I guess one could argue that the Building Department was free to assume that the Planning Board would eventually approve some kind of shared driveway.
But doesn’t that mean the Building Department essentially took away the power of the Planning Board to decide whether a shared driveway was possible or
desirable?
It seems to me that Planning Board approval of an essential permit to a project should always be obtained prior to construction. Following that
logic, that means the house on Lot 2 should not be being built, doesn’t it?
I imagine there are many precedents within the City history about the balance of power between the various Boards and Departments that may determine
how this should have been done. But as an outsider looking in, I have to question how this has happened in this situation. I hope Planning Board members all
will take a close look at this question to decide how you feel about it, and discuss this question as a board.
3. Where did Lot 4 on the Site Plan come from, and why didn’t the Planning Board and the public know prior to the submittal of the Site Plan of the
developer ’s plan for that? And what options do you have for your next steps?
One possible explanation is that the developer planned all along to include Lot 4 and its new house in the development project. But he knew that including it in the initial
ANR determination in June would spur you to require a Site Plan, which would trigger the public hearing process.
So as soon as he thought that he was safely on his way with Building Permits for Lots 1 and 2, he could now reveal his full hand and objective.
I hope you all will find out whether that was the developer’s plan all along.
One key point to note here is that Lot 4 doesn’t exist except on the developer’s Site Plan.
Carolyn Misch confirmed this point in an email she sent me:
"Yes, the Board will have to formally endorse the lot configuration. They could actually do that on Thursday noting that if an application for ANR is submitted that matches the
survey boundaries submitted, that this does not constitute a subdivision and therefore the plans can be signed for recording."
Why is the Planning Board being asked to consider a driveway to serve a house on a lot that doesn’t exist legally yet and that you have not been
allowed to consider the full ramifications of before approving it? Isn’t this putting the cart before the horse?
Shouldn’t the Planning Board first be looking closely at that lot proposal and deciding what requirements should be in place to allow it to come into legal
existence?
Of course, if you had been looking at this entire development as a whole before any of this moved forward, you would have likely required or at least requested that the property be
developed in a whole different way, much more consistent with the neighborhood and the City’s stated development objectives. Instead you’re now being offered a poorly organized
subdivision of look-alike massive houses out of scale with the surrounding neighborhood.
If you give the driveway and Lot 4 proposals your approval, what will prevent the developer from demolishing the existing house, and building
another look-alike house in its place?
The developer recently had a conversation with another of my downstreet neighbors, Reyes Lazaro, where she was left with the impression that that is exactly his plan.
I urge you to consider carefully all of the options that may be legally available to you.
It seems to me that one possibility is that you approve a shared driveway that only extends far enough to serve the original, existing house and new
house being built for 8 Warner.
If you do that, you might still be asked by the developer at a later date to be allowed to subdivide what is the current Lot 3 into a new Lot 3 and 4.
Then you could perhaps have a bit more say in how both of those lots will be developed going into the future.
I don’t know enough about the extent of your power to influence things, but perhaps your board, the Planning Staff, and the Building Commissioner could work
together with the developer and community to come up with a better plan than has been placed before you now.
So in light of all these questions and others my neighbors have raised, I ask you to please delay all decisions about and
activities related to the 170 Federal Street project, pending getting answers - for you and the public - to all such questions.
This includes your decision about the shared driveway, and even your asking City officials about their power to halt ongoing contruction of the
house on Lot 2, which is now 8 Warner St., pending your further review.
At the very least, please do three things beyond the current proposal:
1. Require that the current Lot 3 be divided into two lots in so that a new Lot 4 is big enough that the trees along the south side can be left there.
Make sure the driveway is redesigned accordingly.
2. With other key officials of the City, find out how the the developer was allowed to build on Lot 2, and make sure that this never happens again.
3. Join others in the City in advocating for and completing an overhaul of the infill permitting processes in the City to make sure a project like this
is never allowed to go forward again.
Thank you for considering my questions and concerns.
P.S. To ensure this email isn’t too big, I’ve only included below the most important attachments. If there is an attachment you’d like to have that isn’t included below, please let me
know.
5 attachments
PastedGraphic-4.tiff
33K
2020-06-24 Land Plan Federal 170 ANR Approved MassLandRecords.pdf
1232K
2020-09. Site Plan- Warner St. Federal St. Plan Nu-Way Homes submitted 2020-10-21.pdf
994K
2020-10-22 #2. Special PermitApplication_Nu-Way Homes Inc.pdf
241K
2020-06-02 Zoning Permit 170 Federal 23D-066 (3).pdf
639K