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Watling Letter to ZBA 2023-08-18 Continuation Request1 GML GREEN MILES LIPTON, LLP ATTORNEYS AT LAW JOHN J. GREEN, JR. 77 PLEASANT STREET HARRY L. MILES P.O. BOX 210 ROGER P. LIPTON NORTHAMPTON, MA 01061-0210 JOHN M. MCLAUGHLIN* PHONE (413) 586-8218 *ALSO ADMITTED IN CONNECTICUTFAX (413) 584-6278 MICHAEL PILL (Main Office) BRAD A. SHIMEL SUSAN L. MILES WESTFIELD OFFICE: DAVID C. KUZMESKI, OF COUNSEL 48 EAST SILVER STREET, SUITE 5 RAYMOND W. ZENKERT, JR., OF COUNSEL*** WESTFIELD, MA 01085 *** ALSO ADMITTED IN OHIO & MICHIGAN PHONE (413) 642-8367 BRIAN L. BLACKBURN (Dec.) FAX (413) 579-5357 www.greenmiles.com August 18, 2023 Northampton Zoning Board of Appeals 210 Main Street, Rm 11 City Hall Northampton, MA 01060 RE: Matter: Appeal of decision by the Building Commissioner regarding structure at 129 Riverbank Rd, Northampton, Map ID-25-26. Scheduled hearing: Thursday, August 24, 2023, at 5:30 PM. Third Request for Continuance of Scheduled Hearing Date and Written Waiver of Rights I. Request for Continuance As you may recall, I represent Richard Watling ("client") who owns and resides at 129 Riverbank Road. On June 24, 2022, pursuant to M.G.L.A. 40A § 8 and §15, I filed an appeal of the Northampton Building Commissioner's May 26, 2022 Order mandating the removal of the partially constructed garage structure located at the rear of my client's property (the “teardown order”). The next hearing on the teardown order is scheduled for August 24, 2023. For the reasons set forth herein I am requesting a postponement of that hearing until December 21, 2023. One of the principal grounds for my appeal is that this Board should never approve the destruction of a new building where there is a chance that there is zoning relief that could allow for the new construction. An order to tear down a structure should be a last resort and should be issued only when there is no possibility of zoning relief that could legalize the structure. See Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass.App.Ct. 394 at 407 (2012). 2 I am now happy to report that we have entered into a purchase and sale agreement with the new owner of 117 Riverbank Road to purchase approximately 1568 ft.² of that property which is adjacent to my client’s property. We have filed for a special permit seeking relief which is almost identical to the relief granted by this Board in 2021. There is now a very good possibility of obtaining zoning relief that can legalize the structure. I am asking for time to obtain the zoning relief and the related Conservation Commission relief before this Board acts substantively on the teardown order. II. Procedural History If you recall, this Board has graciously postponed hearings on the teardown order while we endeavored to enable my client to purchase approximately 1568 ft.² of land (the “subject property”) from the 117 Riverbank Road property which is adjacent to my client’s property. With the subject property my client could then proceed with the special permit application pursuant to § 350-9.3. (A)(10). The special permit being sought would be nearly identical to the application this Board granted my client in 2021. At first, this Board granted my client needed time to negotiate with the new owner of the 117 Riverbank Road property (the “new owner”). Luckily, we were able to get the new owner to agree to the purchase and principal. The new owner would not enter into a purchase and sale agreement until he knew what his mortgage holder would need to give partial release of the mortgage. Then this Board granted my client time to allow for the new owner to get an agreement from the mortgage holder to grant a partial release of mortgage. Unfortunately, there was considerable delay because the mortgage holder would not even consider granting a partial release until the new owner had been on the property for at least one year (new owner purchased 117 Riverbank Road in June 2022) even though the new owner offered to pay the mortgage payments through June 2023 in advance. Finally, last month the new owner made arrangements with his mortgage holder to get a partial release of the mortgage and, as mentioned above, we have signed purchase and sale agreement for the subject 3 property. III.Special Permit and Conservation Commission Relief I have now applied for a special permit pursuant to § 350-9.3. (A)(10) which is extremely similar to the application this Board granted in 2021. A copy of the application is filed herewith. Please note that the copy contains a copy of the purchase and sale agreement. I have included herewith the application and memorandum in support of the special permit with exhibits as an Appendix. Now, more than ever, there is a clear possibility of zoning relief that would legalize the structure and make the teardown order moot. I am simply asking that any substantive hearing on the teardown order hearing be postponed in order to give this Board time to consider the new special permit application and the Conservation Commission time to consider the related matter before that board. The situation is different than it was in 2021. This time we have a purchase and sale agreement, and we are already undertaking the work to seek the related Conservation Commission relief. We have retained Mr. Ward Smith, a well-respected wetlands specialist, who has already started working on applications for the related relief which will be sought from the Conservation Commission. IV.Hearing on August 24, 2023 Unfortunately, due to a scheduling problem, I personally will not be available on August 24, 2023, but my law partner, Attorney Roger Lipton, will attend the hearing (which we understand will be remote) to represent our client. Attorney Lipton is more than familiar with zoning matters as he is the Chair of the Zoning Board of Appeals of Whately, Massachusetts. However, if you decide to substantively go forward with the teardown order despite the arguments and representations made herein, I respectfully request that you at least grant my client a short extension such that I can be present at the substantive hearing as I am more familiar with this particular matter. V. Timing of continuance I realize that this Board will act quickly and efficiently in regard to the Special Permit. I fully 4 expect the hearing soon after the proper noticing has been undertaken. However, the matter before the Conservation Commission may take more time. That is why am asking for an extension of approximately four months in regard to the substantive hearing on the teardown order. Our wetlands expert, Ward Smith, believes that this timeframe is reasonable, and he hopes to obtain relief within that timeframe. Accordingly, I request that the hearing be postponed until December 21, 2023, or sometime soon thereafter, at the convenience of this Board. VI. Waivers If the Board grants a continuation of the substantive hearing, my client will waive his rights pursuant to two separate provisions of M.G.L.A. 40A § 15. Specifically: 1. The third paragraph of M.G.L.A. 40A § 15 provides, in part, "The board of appeals shall hold a hearing on any appeal, application or petition within sixty-five days from the receipt of notice by the board of such appeal, application or petition." If a continuation is granted, my client waives any claim that the substantive hearing should happen within 65 days of the notice of the appeal. 2. The fourth paragraph of M.G.L.A. 40A § 15 provides, in part, "The decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition, except in regard to special permits, as provided for in section nine." If a continuation is granted my client stipulates that any time granted for the continuance will be excluded from any calculation with reference to the timeliness of the decision pursuant to this provision. VII. Conditions My client fully understands that no work is to be done on the structural addition to his home, the addition which is the subject of the Building Commissioner’s order, and he will undertake no work on the structure. He also understands that the structure is not to be utilized.