Judge tosses Westhampton couple’s suit over zoning variance

  • Amber Kellogg, of Westhampton, stands near a hole where a foundation for her home once stood, at 109 Northwest Road, Monday, Aug. 6, 2018. The foundation was removed to accommodate the town's building regulations. Her home, background, will be placed on a new foundation.

  • Workers remove the foundation that did not meet setback requirements at 109 Northwest Road in Westhampton, July 28. COURTESY AMBER KELLOGG

Staff Writer
Published: 8/9/2018 8:41:41 PM

WESTHAMPTON — A judge has dismissed a couple’s lawsuit against the town Zoning Board of Appeals’ decision not to grant a variance for a home at 109 Northwest Road.

Judge Robert G. Fields, of the Housing Court Western Division in Hadley, on Friday granted the board’s motion to dismiss because the appeal was filed a day late by attorney Norman C. Michaels of Springfield, who represented Amber Kellogg, 36, and Michael Barbeau, 35.

Fields did not rule on the merits of the couple’s suit.

“It was a back-and-forth battle over whether or not there was a missing page (in documents requested by Kellogg’s lawyer) or if we put in the appeal in time,” Kellogg said. “Our attorney argues that he was given an incomplete copy of the (ZBA’s) decision from the town clerk.”

Neither zoning board members nor their legal representatives could be reached for comment.

According to court documents, Michaels requested the ZBA’s variance denial, filed with the town clerk on Dec. 15. Michaels argued that a complete copy was not filed until Dec. 18, but the judge in his decision disagreed.

Because an appeal for the variance had to be filed within 20 days, the judge ruled that the lawsuit filed on Jan. 5 was a day late.

“I’m just over it all,” Kellogg said. “I’m just happy I can move forward and that’s all I care about at this point… I’m able to move forward with the donations, help, and resources from everyone in town to be able to move forward because we had a lot of help.”

Kellogg and Barbeau recently acquired another permit for building a modular home that got approval from town officials. Last week, the family removed the original foundation poured in June of last year.

This week they’re working on clearing trees for their future backyard and preparing to put in a foundation next week in a large hole on the property, Kellogg said. She hopes to have the modular home installed on the foundation by a crane by the end of September and then completed within two or three months after that.

Variance appeal

Kellogg and Barbeau had appealed the zoning board’s November 2017 decision to deny a variance for the family’s first attempt to build a home on the property, which had been permitted several months earlier by former building inspector Charles Miller.

They were denied on the basis that the permit should not have been issued in the first place, because the home’s foundation fell within 50 feet of the property line bordering the road, and because the permit had been issued to the homeowner and not a licensed contractor as legally required.

The family had planned on constructing a modular home on top of the foundation based on the building permit granted by Miller in April 2017. He had gotten the necessary signatures from the Board of Health and Fire Department, but had waived the sign-off from the ZBA.

On June 5, 2017, an abutter appealed the building permit to the ZBA, setting off a yearlong dispute.

That building permit should never have been issued, a member of the Zoning Bylaw Review Committee contends. After Miller’s retirement last June, his successor, Thomas Quinlan, issued a stop-work order on Aug. 23.

Ginny Curtis of the review committee, who is a former member of the town’s ZBA and Planning Board, said Thursday that the first building permit did not meet the legal requirements for building a modular structure because those standards are different than those for a single-family home.

She said state building codes require building permits for modular homes to be issued to licensed contractors, and Miller illegally issued it to Kellogg.

“(Miller) broke the law by issuing a building permit to Kellogg,” Curtis said. “Even if (the ZBA) wanted to grant a variance, legally they could not have granted a variance because they put in their foundation without knowledge of their own property lines. You cannot grant a variance on a self-imposed hardship and that is a self-imposed hardship.”

She said the yearlong dispute could have been avoided if Miller had simply followed the law, had the land surveyed, and had the property lines identified at 109 Northwest Road.

“Nobody wants to answer the question of why Mr. Miller was not held responsible by anybody,” Curtis said. “Not Amber, not Michael, not the Westhampton selectmen … He just started a GoFundMe page and said his mea culpa.”

Miller recently helped set up a page for online donations for the couple and their two children, which has raised $6,060 to pay for the foundation and legal work.

Curtis said the whole issue of an illegally granted building permit fell to the feet of the ZBA and that board was made the scapegoat for Miller’s mistake.

Luis Fieldman can be reached at lfieldman@gazettenet.com

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