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Melnik letter to ZBA 6.9.21MELNIK LAW OFFICES Attorneys at Law 110 King Street - Northampton, Massachusetts 01060 Phone: (413) 584-6750 - Fax (413) 584-6789 PATRICK J. MELNIK JR., ESQ. patmelnikjr@melniklawoffices.com MARY E. MELNIK PENNEY, ESQ. marypenney@melniklawoffices.com JOSEPH E. SZAWLOWSKI, ESQ. josephszawlowski@melniklawoffices.com PATRICK J. MELNIK SR., ESQ., Of Counsel ROGER A. WALASZEK, ESQ., Of Counsel June 9, 2021 Zoning Board of Appeals C/O Office of Planning & Sustainability 210 Main Street, Room 11 Northampton, Ma 01060 Re: Permit Denial Appeal Hearing Continued to 6/10/2021 Grove Ave. Leeds MA. To Whom It May Concern: Please find attached copies of additional supporting documentation and additional reasons the permit should be granted which should be taken together with all documentation submitted previously and of record. The ZBA should grant the building permit for Tax Map 05, Parcel 012, 001 permit dated 3/21/2021, denial dated 3/25/21 for the following reasons: The subdivision of land prior to the enactment of the subdivision control law was accomplished by the recording of a plan in the registry of deeds. After the enactment of the subdivision control law the Registry of deeds will not accept and record any plan which subdivides land unless it has received planning approval or if it is determined planning approval is not required. In this case the Washington Heights plan is unquestionably recorded in the Hampshire County Registry of Deeds and therefore the land is subdivided as provided on that plan and the streets as laid out on that plan are in existence on paper and the owners’ rights cannot be denied by the City. There is unquestionably access to the property. While the City was granted an easement along the way for use as a multi-use trail that does not interfere with rights which were in existence. In addition, the way is sufficient for vehicle access, as was stated in the meeting City vehicles regularly travel along the multiuse trial and the owners have maintained the legal rights to access across that way and they cannot be prohibited. The attached plan shows the width of the way as bult at this time which is the same as the width of the road on other portions of Grove Ave and is therefore sufficient for access to this parcel. In addition, very recently a home was built at 83 Grove Ave which is abutting this property and has the same access as the parcel in question. The building permit was granted 3/13/2017. If there was sufficient access to grant a building permit for 83 Grove there is sufficient access to this parcel as their access is essentially the same. The city has stated that in the past they have not allowed the end of a way to be used as frontage, however it is acknowledged that the zoning regulations do not provide for this. If the zoning regulations do not provide that the end of the way cannot be used as frontage. The city or board would be making and enforcing an additional and unwritten rule which is not included in the plain language of the regulations. The regulations must be followed. The parcel in question fronts Grove Ave directly as shown on the attached plans. There is no regulation of the City of Northampton Zoning regulations which prohibits the frontage of this lot butting a city street from counting as frontage under the regulations. The City cannot read language into the zoning regulations that does not exist. The City contention that they previously denied other building permits on ends has not de-facto amended the zoning regulations as has been suggested. In HSCV2004-00029 a Judgment in the Superior Court established that the Grove Avenue, Northampton, Massachusetts is a public way for its entire length to the point where it abuts the property now owned by the Beaver Brook Nominee Trust. This Judgment established that at least until the point abutting the trust is a public way but the issue of the way past this point was not at issue and has not been adjudicated by this Judgment and the applicable Subdivision Control laws in existence at the time of the recording of the Washington Heights Plan controls. Please find further plans, maps and documents showing Grove Ave. and supporting the sufficient accesses and right to construct on this lot which may be helpful to the Board. If you have any questions or concerns, please feel free to contact me. Sincerely, Joseph E. Szawlowski, Esq. JES/jlp Enclosures