To: Northampton Planning Board Re: Three County Fairgrounds Phase I requires a special permit From: Attorney Michael Pill Representing: Maria Tymoczko

1. Page 1
GREEN, MILES, LIPTON & FITZ-GIBBON, LLP
ATTORNEYS AT LAW
77 PLEASANT STREET
POST OFFICE BOX 210
NORTHAMPTON, MASSACHUSETTS 01061-0210
(413) 586-8218
FAX (413) 584-6278
JOHN J. GREEN, JR. SUSAN L. MILES
HARRY L. MILES JOANNE KUZMESKI-JACKSON
ROGER P. LIPTON (GEOFFREY B. WHITE-RETIRED)
JOHN H. FITZ-GIBBON (BRIAN L. BLACKBURN-1951-2007)
JOHN M. MCLAUGHLIN*
MICHAEL PILL
*ADMITTED ALSO IN CT
October 28, 2010
TO: Northampton Planning Board
RE: Three County Fairgrounds Phase I requires a special permit
Factual background
I represent former City Councilor Maria Tymoczko, 28 Pomeroy Terrace. She is concerned
about the Three County Fairgrounds project’s drainage impact on her property.
The September 16, 2010 “Permit Application” for Three County Fairgrounds Phase I states
that the “Planned Use” is “Demolition of 15 existing stall barns and accessory structures and
the construction of 3 new stall barns, restrooms and site improvements.” The “Site Plan
Description” in the application states that the “use is legally preexisting nonconforming.” The
application states that it seeks only “Planning Bd. Site Plan (NO Special Permit)” and a
“Zoning Board Finding.”
The handwritten “Zoning Permit Application (§10.2)” dated September 7, 2010 states in item
No. 6 that the “Project entails demolition of existing stall barns and construction of 3 new
barns, drainage infrastructure, planning and other site improvements.” The application,
signed under a certification that the information therein is “true and accurate to the best of my
knowledge,” answers “NO” to the question “Has a Special Permit/Variance/Finding ever
been issued for/on the site? [bold face type in original]”
Attached at the end of this letter as Appendix No. 1 is the special permit “to construct an
arena and two horse barns at the Three County Fairgrounds, Northampton, Massachusetts”
recorded January 27, 1981, in Book 2207, Page 335 at the Hampshire County Registry of
Deeds. It took me less than ten minutes to find this properly indexed document.
One cannot voluntarily raze buildings to the ground, erect entirely new buildings, and
call it a change, extension or alteration of a nonconforming use.
The rule is stated as follows in the Martin R. Healy (ed), 1 Massachusetts Zoning Manual,
§ 6.6.4 at pages 6-14 to 6-15 & § 6.7.2 at page 6-17 (t5th ed. 2010):
A long line of Supreme Judicial Court opinions have established that the
existence of a lawful nonconforming use does not permit the erection of
additional structures for extension of the use, absent express authorization by the

2. Page 2
local zoning law. Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648, 658
n.4 (1973); Garfield v. Bd. of Appeals of Rockport, 356 Mass. 37, 40 (1969);
Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 297--98 (1964);
Simeone Stone Corp. v. Bd. of Appeals of Bourne, 345 Mass. 188, 192--93
(1962); David v. Bd. of Appeals of Reading, 333 Mass. 657, 660--61 (1956);
Connors v. Town of Burlington, 325 Mass. 494, 495--96 (1950); Inspector of
Bldgs. of Burlington v. Murphy, 320 Mass. 207, 210 (1946); Wilbur v. Newton,
302 Mass. 38, 43 (1938). While these decisions were rendered under the prior
Chapter 40A, their reasoning applies equally well to the present Section 6, and
there is no reason to doubt their continuing validity. Vokes v. Lovell, Inc., 18
Mass. App. Ct. 471, 484--85 n.21 (1984). Express authorization by the local
zoning body is required for the expansion of an existing lawful nonconforming
use into additional structures. See Schneider v. Town of Winchendon, 2004 WL
1109631 147 (Mass. Super. Ct. Apr. 14, 2004) (upholding zoning board's denial
of special permit for expansion into five-bay garage was consistent with statutory
purpose of Section 6 because such an expansion would triple traffic level and
negatively impact other persons in immediate area).
* * * * *
A voluntarily destroyed, nonconforming structure may not be rebuilt as a
noncomplying structure even if the proposed reconstruction will not increase the
extent of the noncompliance. Martin v. Bd. of Appeals of Yarmouth, 20 Mass.
App. Ct. 972 (1985); Angus v. Miller, 5 Mass. App. Ct. 470, 473 (1977); Shuffain
v. Mulvehill, No. 308061, 2006 WL 1495106 (Mass. Lnd Ct. June 1, 2006).
The proposed destruction of buildings and the construction of new buildings on the Three
County Fairgrounds is not expressly authorized by the Northampton Zoning Ordinance.
Section 350-9.3 of that Ordinance is entitled “Change, extension or alteration of legally
preexisting nonconforming structures, uses or lots.” It uses the word “reconstruction” only in
subsection A(3), which states as follows:
Legally preexisting nonconforming structures, uses, or lots may be changed,
extended or altered as set forth below. If a use is not eligible under one
subsection, proceed to the next subsection.
A. A preexisting nonconforming structure or use may be changed, extended
or altered: …
(3) As-of-right when said change or alteration is limited to rebuilding a
single- or two-family home destroyed by fire or other natural disaster within two
years of the disaster. Reconstruction must either meet the current zoning
requirements or fall within the same footprint and height of the destroyed home
so as not to expand the nonconforming nature of said home. [Underlining
added.]
The difference between “reconstruction” and “alteration” or “extension was explained this
way in a recent land court decision cited above by the Massachusetts Zoning Manual,
Shuffain v. Mulvehill, 2005 Misc. 308061, 2006 WL 1495106, at pages *10-*11 & n. 6 (2006)
(Trombly, J.):
II. The Special Permit authorizing “alteration” or “extension”

3. Page 3
Shuffain raised numerous points regarding the Board's Decision, but his primary
contention is that because Margaretmit plans to raze the current nonconforming
structure on its property, the grant of a Special Permit under Bylaw Section 1630
allowing for the alteration or extension of a nonconforming structure is invalid.
The court finds this is a question of law appropriate for summary judgment. Upon
review of the Bylaws and applicable case law, the court finds and rules the
Special Permit to be invalid because the razing of a preexisting, nonconforming
commercial structure cannot properly be considered an extension or alteration of
that structure, and, therefore, results in the loss of protected status.
The project calls for the razing of the existing building on locus. Margaretmit
states it is “altering” the structure because it will be constructing the new
dealership building, in part, on the footprint of the currently existing building and
will be retaining part of the foundation. Specifically, the new building will be on
the footprint such that it will line up with the current setback from Neponset Street
of 29.6 feet, the protected nonconformity. Because the dealership building will be
bigger than the Ground Round, it will extend in other directions beyond the
existing footprint. Margaretmit contends, however, that because it is building in
part within the footprint, it qualifies for a Special Permit under Bylaw Section
1630.
*11 The treatment of preexisting nonconforming structures is governed both by
Section 6 of the Zoning Act and local bylaws. The Zoning Act provides that “[p]re-
existing nonconforming structures or uses may be extended or altered, provided
that no such extension or alteration shall be permitted unless there is a finding by
the permit granting authority or by the special permit granting authority
designated by ordinance or by-law that such change, extension or alteration shall
not be substantially more detrimental than the existing nonconforming use to the
neighborhood.” G.L. c. 40A, § 6. The language of Section 6 has been interpreted
to dictate that for commercial structures such as the one at issue here,
nonconforming structures may be reconstructed, FN6
altered, extended or
structurally changed only where the local bylaws specifically authorize such
action. M. BOBROWSKI, HANDBOOK OF MASSACHUSETTS LAND USE AND
PLANNING LAW, § 6.05[A] (2d ed.2002), citing Blasco v. Board of Appeals of
Winchendon, 31 Mass.App.Ct. 32 (1991).
FN6. The question of whether a town may, in fact, authorize
reconstruction after voluntary demolition of a commercial structure
has not been addressed by an appellate court. BOBROWSKI, §
6.05[B]. While Professor Bobrowski notes that several communities
do allow tear-downs to good advantage, the language of the Zoning
Act may not support such authorization. Section 6 states that
“reconstruction, extension or structural change” of a nonconforming
structure must comply with current zoning requirements. Only
“extension or alteration” are referenced, however, in the provision
authorizing special permits to issue upon a finding that such
“extension or alteration” is not substantially more detrimental to the
neighborhood.

4. Page 4
The proposed destruction of buildings and the construction of new buildings on the
Three County Fairgrounds requires a special permit.
The Three County Fairgrounds are located in the Special Conservancy Zoning District
according to the official City of Northampton Zoning Map. The Table of Use Regulations
which is Attachment 1 to the Northampton Zoning Ordinance (and referred to in § 350-5.2.A
& 350-13.4), states that “Agricultural fair and/or exhibition grounds … “ use is allowed only in
the Special Conservancy Zoning District and then only under a special permit issued by the
Planning Board. A special permit for stables on land in the Special Conservancy Zoning
District is subject to the following ordinance sections: 350-10.1, 350-10.8, 350-13.1, 350-
13.3, 350-13.5, 350-13.6, 350-13.8.
As stated above, a special permit was issued for other buildings on the Three County
Fairgrounds, recorded January 27, 1981 at Book 2207, Page 335 in the Hampshire County
Registry of Deeds.
Opposing counsel have to date provided no legal authority supporting the failure to
apply for a special permit.
On October 25, 2010 (the day I commenced a land court action), I wrote the following in an
email to Northampton City Solicitor Elaine Reall and attorney Edward Etheredge (who I
understand represents the landowner Hampshire Franklin and Hampden Agricultural Society
and the Three County Fairgrounds Redevelopment Corporation):
Ed and Elaine:
In an October 20, 2010 (4:14 PM) email from Teri Anderson to Gerald Budgar,
Ms. Anderson wrote as follows:
"After consultation with the Planning Office, it was decided that a ZBA
finding would be appropriate for Phase 1 because it is replacing the
existing barns to retain the existing users at the Fairground rather than
expanding the building footprint."
Decided by whom? I am deeply concerned that a Northampton public official,
who to the best of my knowledge is not an attorney, and citing no legal authority,
would write such a statement which directly contradicts governing Massachusetts
case law.
If you know of any legal authority that supports Ms. Anderson's assertion, please
provide the citations. If not, please withdraw the pending applications for site plan
review (planning board) and a finding (zoning board of appeals) and submit the
required special permit application.
To date I have received no response to the above quoted request. I respectfully challenge
attorneys Real and Etheredge, and Teri Anderson, to disclose:
(a) who made the decision not to apply for a special permit; and
(b) upon what legal authority that decision was based.

5. Page 5
The failure to apply for a special permit was based not on the law, but on a desire to
render meaningless any judicial appeal.
On July 14, 2010, at about 5:17 P.M., Charles Bowles, a member of the Board of Directors of
Three County Fairgrounds Redevelopment Corporation, sent an email Suzanne Beck, Clerk
of Three County Fairgrounds Redevelopment Corporation and Executive Director of the
Northampton Chamber of Commerce, which states as follows:
As far as the planning board process is concerned, I talked with ed Etheredge
today about the appeal issue. His take on this was, if we go for site plan
approval and it is appealed we can proceed at our on peril. But, if we go for
special permit and it is appealed we are dead in the water until the appeal is
satisfied.
I would also recommend that we hire mr. Etheredge to assist Rick Klein at the
planning board for the reasons stated before. He is reasonably priced and
considered the specialist on zoning in Northampton.
To the best of my knowledge, the motive of rendering a judicial appeal meaningless, as
stated above in Mr. Bowles' email, is unsupported by any Massachusetts legal authority),
Conclusion and requested action
For the reasons set forth above, I respectfully request that the Planning Board deny the
pending site plan review application on the grounds that it must be submitted with a special
permit application.
Very truly yours,
Michael Pill
Enclosure (Appendix No. 1 – special permit)
MP/csh/L1.968.Tymoczko

6. Page 6
APPENDIX NO 1: Three County Fairgrounds Special Permit

7. Page 7