GREEN, MILES

,

LIPTON &FITZ-GIBBON,
ATTORNEYS AT LAW 77 PLEASANT STREET POST OFFICE BOX 210

LLP

NORTHAMPTON,

MASSACHUSETTS (413) 586-8218 FAX (413) 584-6278

01061-0210

JOHN J. GREEN, JR. HARRY L. MILES ROGER P. LIPTON JOHN H. FITZ-GIBBON JOHN M. McLAUGHLIN· MICHAEL PILL • ADKIT:t':sU ALSO IN CT

June 14,2011

SUSAN L. MILES JOANNE M. KUZMESKI-JACKSON (GEOFFREY B. WHITE ·R:RTI:&:Su) (BRIAN L. BLACKBURN-191S1-2007)

Ann Parizo, Chairperson Easthampton Planning Board City of Easthampton 50 Payson Street Easthampton, MA 01027 RE: Parsons Village

Dear Ms. Parizo: I have been asked by City Planner Stuart Beckley to review the list of concerns presented by Attorney Mark Beglane, on behalf of certain neighbors, regarding the Planning Board's review of the proposed "Parson Village" project. I reviewed not only Attorney Beglane's comments, but a response from Attorney Edward Etheridge, whom I understand represents the developer, the Valley Community Development Corporation, as well. Let me say, at the outset, that this review once again highlights some of the deficiencies inherent in our current zoning ordinance. Because sections of the ordinance were adopted at different times, the ordinance contains inconsistencies, as well as ill-defined tenus or provisions. Some of these were highlighted in the attorneys' presentations I reviewed. Ultimately, it is up to the Planning Board to interpret the ordinance, and generally, the Planning Board's interpretation will be upheld. (See, for example, Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 117 (1955); Becket v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96, 101 (1978) In performing its interpretive role. the Planning Board should be guided by any previous decisions in which it has reviewed such terms or sections. I will address each of the items in Attorney Beglane's presentation seriatim:

Anne Parizo Chairperson City of Easthampton Planning Board June 10,2011 Page 2 1. Building A Setback Attorney Beglane, citing footnote 3 in Table 6-1 which requires a forty foot setback from the street for a 2'l2 story structure, argues that Building A should be considered as 21'2 story building because it has a partial basement. The Plans indicate that the majority of Building A is built on a concrete slab on grade with a small basement mechanical room lying below ground. The ordinance defines "story" in part as: "a basement shall be deemed to be a story when its ceiling is six (6) or more feet above the finished grade. A cellar shall not be deemed to be a story. An attic shall not be deemed to be a story if unfinished and without human occupancy." I have no way of telling from the plans that I reviewed whether or not the ceiling in the basement in the mechanical room is six (6) or more feet above the finished grade, but, in my opinion the ordinance does not appear to classify this type of structure (a basement mechanical room) which exists only under a small part of the overall building, as a "story". Ultimately, it is for the Planning Board to decide whether or not this basement mechanical room classifies as a story. but, in the event the Board finds that it does not, the usual setback requirements would apply. 2. Accessory Buildings Section 6.75 of the zoning ordinance states that "accessory buildings other than private garages shall be in the rear yard." Section 6.75 also states that accessory buildings shall not be more than "ten (12) feet (sic) in height at any point". Section 6.74, on the other hand, states that the maximum height for any accessory building shall be twenty-five (25) feet. Obviously, there is an inconsistency in the ordinance, but in any event, Building E. the "Community Building", as shown in the plan certainly exceeds either 10 or 12 feet in height. Attorney Etheridge argues that the intent of Section 6.75 is not to have garden sheds or storage sheds in the front yard and that the height requirement of "ten (12) feet" applies only to those structures. I believe that that is a reasonable interpretation which the Board could adopt if it agrees that this is reasonable. The Board could determine that the height

Anne Parizo Chairperson City of Easthampton Planning Board June 10,2011 Page 3 limitation for other accessory structures is indeed twenty-five Community Building cannot exceed that height. (25) feet and that the

As to the requirement that Accessory Buildings be placed in the rear yard, it seems clear, in a multi-family housing development, it is not possible or feasible that the accessory building be placed in the rear yard of all the buildings of the development. It appears from the plan that I reviewed that the Community Building is in the rear yard of at least some of the buildings, and, in any event, it is clearly not in the front yard of any of the buildings. As noted, this "rear yard" requirement may have been directed at garden or utility sheds and the like. In my opinion, the Board would be within its authority if it determined that the placement of the Community Building is appropriate and that the height of the building should not exceed twenty-five (25) feet. 3. The Distance Between the Walls of Principal Structures Section 6.83 of the ordinance provides that only one principal structure shall be permitted on a lot. Section 6.83(a) further provides that ''the minimum distance between the walls of such principal buildings which contain windows shall be twice the minimum side yard or side setback required by the district." However, Section 8.32(b) provides that more than one structure may be allowed on a lot in a multi-family housing project by special permit, Again, we have an inconsistency which must be interpreted and resolved by the Board. Attorney Beglane argues that Section 6.83(a) requires that the building must be at least forty (40) feet wide in the R15 Zone (twice the side setback of twenty (20) feet) and that, accordingly, Buildings Band D to the easterly side of the project do not comply. I must admit that I do not understand what the intent of this section could be. The Board could take the position that Section 6.83 in its entirety is overridden by Section 8.32 so that the requirement of the distance between walls does not apply to principal buildings in a multi-family housing situation. (It might be that the omission of multifamily uses from the list of exceptions to Section 6.83 may have been an oversight.) The Board could also determine, however, that Section 6.83(a) does apply to principal structures in within a multi-family housing development.

Anne Parizo Chairperson City of Easthampton Planning Board June 10, 2011 Page 4 In that latter case, Attorney Beglane appears to be correct in that the buildings do not appear to be sufficiently wide as to comply with the zoning ordinance, and the Plan would have to be modified accordingly before approval could be granted. 4. Minimum Yard Setbacks Under Section 8.32(c) the maximum number of dwelling units per structure is eighteen (18) with the condition that in the R15 zone the minimum yard setback shall be "be increased to fifty (50)" if the structure contains over six units. While the ordinance does not use the word "feet", it is my opinion that the intent was to increase the minimum yard setbacks to fifty feet ifthere are over six units. Attorney Beglane correctly points out that the three Buildings B each have seven (7) units and therefore must have a setback of fifty (50) feet from the property line and, as currently drafted, the plan does not to comply with this provision of the Ordinance. 5. Tree and Vegetation Removal Section 8.331(a)(4) requires the developer to minimize tree, vegetation and soil removal and grade changes. Attorney Beglane argues that the development calls for the removal of large areas of vegetation and trees from the easterly portion of the site in violation of this regulation. This is another issue for the Board to decide, and the Board acts within its discretion in reviewing the extent of tree removal in deciding whether or not it is excessive or violative of the ordinance. The same may said with respect to requirements of Section 8.331(b) which requires that residential structures shall be visually separated by trees and plantings. Again, the determination as to whether or not that requirement has been met rests within the sound discretion of the Board. 6. Drainage/porous Pavement Section 8.331 (b) also requires that each dwelling must be provided with access, drainage, and utilities "functionally equivalent to that provided under the Planning Boards Subdivision Rules and Regulations." I understand that part of the developers plan involves the use of pervious or porous pavement. I was provided with a memorandum from an Amy Heflin, who apparently is an abutter to the project, containing a report from

Anne Parizo Chairperson City of Easthampton Planning Board June 10, 2011 Page 5 T. Reynolds Engineering. I assume this was provided to the Board. The report questions the efficiency and durability of "porous pavement" but ultimately. the decision as to whether or not that material is an appropriate material for this project or whether it complies with the Planning Boards Subdivision's Rules and Regulations, is solely within the Board's discretion and it is up to the Board to make that determination. 7. Section 8.334 Open Space Subsection A of this Section provides that all land not devoted to dwellings or accessory uses and roads etc., shall be preserved as open space which shall be permanently protected by donation of a conservation restriction to the City of Easthampton. Attorney Etheridge calls this "curious language" pointing out that it appears to contradict the other part of the ordinance which requires a great deal of landscaping, buffers, and tree planting, yet requires that 50% of the open space be grassed or landscaped for passive recreation. I tend to agree with Attorney Etheridge that their language is confusing and "curious". In any event, the ordinance says what it says and the Board may wish to consider conditioning its approval, if any, on the grant some open space via conservation restriction to the City. Section 8.334(b) requires that multi-family dwellings be separated from adjacent properties by buffer strips and/or fencing "sufficient to minimize the visual and noise impacts of the development." In my opinion, the Board acts within its discretion in determining whether or not any buffer is "sufficient" to meet the intent ofthe ordinance. 8. Parking Spaces Section 8.335(a) requires that no individual parking area shall contain more than fourteen (14) spaces. While parking area is not defined in the ordinance, a parking space is. See Section 2_1.1

Iparking Space: On off-street space having an area of not less than two hundred (200) square feet plus access and maneuvering space, whether inside or outside a structure for exclusive use as a parking stall for one motor vehicle, and further being surfaced with durable payment.

Anne Parizo Chairperson City of Easthampton Planning Board June 10, 2011 Page 6 In any event, the plan shows several parking areas that exceed fourteen (14) spaces and the Board would be acting within its authority to require that the developer revise the plan to comply with this requirement by "breaking up" the parking area with trees, bushes, or other methods. 9. Financial Matters Finally, Attorney BegIane questions the validity and sufficiency of the financial impact statement provided by the developer, the lack of a performance bond, and argues that the applicant is "overpaying" for the property. With the exception of the performance bond, which does appear to be a requirement of the ordinance, it is up to the Board to determine whether or not the material submitted by the developer sufficiently complies with the ordinance requirement and sufficiently informs the Board of the information required. In the final analysis, the Planning Board is faced with a difficult task of interpreting the ordinance which contains inconsistencies and is far from clear in certain areas. The Board acts within its discretion in determining each of these issues, and may rely upon its common sense and experience as well as any previous decisions the Board has made respecting these issues. It appears, as noted above, that certain of the ordinance requirements have not been met in the current Plan, and the Plan would have to be redrawn to meet those requirements in order to win approval. The vast majority of the objections, however, are directed to the Planning Board's interpretation and discretion, and it is up to the Board to finally determine whether or not this project adequately complies so as adequately protect the public interests. I hope that I have sufficiently answered your questions, and if you have anything further please feel free to contact me. Very truly yours,

1'0.

John H. Fitz-Gibbon Counsel for City of Easthampton

JHF/daf

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