COMMONWEALTH OF MASSACHUSETTS

TRIAL COURT
HAMPDEN, SS. CASE NO. 2010 MISC.
LAND COURT DEPARTMENT
____________________________________________________________________

MARIA F. TYMOCZYKO, Plaintiff

vs.
THREE COUNTY FAIRGROUNDS REDEVELOPMENT CORPORATION,
HAMPSHIRE FRANKLIN AND HAMPDEN AGRICULTURAL SOCIETY, and the CITY
OF NORTHAMPTON, Defendants
____________________________________________________________________

COMPLAINT FOR:
(1) RULING UNDER G.L. c. 240, § 14A; and
(2) EQUITABLE RELIEF UNDER G.L. c. 185, § 1(k)

1. Plaintiff Maria F. Tymoczyko owns the land in at 28 Pomeroy Terrace in

Northampton shown as Parcel 32A-234-001 on the records of the City of Northampton

Tax Assessors, and an additional tract of land on Pomeroy Terrance shown as Parcel

32A-273-001 on said Tax Assessors records. Her land abuts the land of defendant

Hampshire Franklin and Hampden Agricultural Society. She is a former member of the

Northampton City Council.

2. (a) Defendant Hampshire Franklin and Hampden Agricultural Society is

a duly organized and existing Massachusetts nonprofit corporation incorporated by an

act of the legislature in 1818, with its principal office located at 54 Fair Street,

Northampton, Massachusetts.

2(b) Defendant Hampshire Franklin and Hampden Agricultural Society has no

registered agent for service of process.

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2(c) The officers of defendant Hampshire Franklin and Hampden Agricultural Society

are as follows:

President: Gerald Clark, 411 Fairway Village, Leeds, MA 01053

Treasurer: Norman E. Roy, 73 Blackberry Lane, Northampton, MA 01060
Clerk: Sandra Stanisewski, 65 Martingale Road, Bernardson, MA 01337
Vice President: Barry Roberts, 646 West Street, Amherst, MA 01002
Vice President: Alan Jacque, 27 Huntington Street, Hadley, MA 01035

2(d) The defendant Hampshire Franklin and Hampden Agricultural Society owns land

in Northampton, consisting of land shown on the records of the Northampton Tax

Assessors as Parcels 25-044-001, 25C-250-001, 25C-251-001, 25C-251-002, 25C-264-

001, 32-001-001, 32A-249-001, 32A-251-001, and 33-002-001 (hereafter the “Three

County Fairgrounds”).

3. (a) Defendant Three County Fairgrounds Redevelopment Corporation

is a duly organized and existing Massachusetts nonprofit corporation, with its principal

office located at 54 Fair Street, Northampton, Massachusetts.

3(b) Defendant Three County Fairgrounds Redevelopment Corporation’s registered

agent for service of process is Ray Duda, 54 Fair Street in Northampton.

3(c) The officers of defendant Three County Fairgrounds Redevelopment Corporation

are as follows:

President: Ray Duda, 200 East Street, Easthampton, MA 01027

Treasurer: Bruce Shallcross, 363 Hart Road, Conway, MA 01341
Clerk: Suzanne Beck, 51 Henshaw Avenue, Northampton, MA 01060

3(d) The membership of the Board of Directors of defendant Three County

Fairgrounds Redevelopment Corporation is listed follows in a document posted online

and entitled “A New Vision for Northampton’s Three County Fairgrounds:”

Chair, Ray Duda, Three County Fair

Frank Basile, Three County Fair

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 Charles Bowles, Bowles Enterprises
Teri Anderson, City of Northampton
DonaldSullivan, Three County Fair
Patrick Goggins, Goggins Real Estate
Robert Bacon, Northampton Airport
Robert Reckman, Northampton City Council
Marilyn Richards
Barry Roberts, Three County Fair
BruceShallcross, Three County Fair

4. Defendant City of Northampton (the “City) was originally incorporated as

the “toune” of “North Hampton” on May 14, 1656 (Mass. Bay Rec., Vol. IV, Part 1, p.

259) and incorporated as a city by 1883 Mass. Acts. c. 250.

5. (a) On July 14, 2010, at about 5:17 P.M., Charles Bowles, a member of

the Board of Directors of defendant Three County Fairgrounds Redevelopment

Corporation, sent an email Suzanne Beck, Clerk of defendant Three County

Fairgrounds Redevelopment Corporation and Executive Director of the Northampton

Chamber of Commerce (hereafter the “July 14 email”).

5(b) The July 14 email was also sent to one or more public officials.

5(c) Because the July 14 email was sent to one or more public officials, it became a

public record pursuant to G.L. c. 4, § 7, clause 26.

5(d) The July 14 email states in part 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.

6. The defendants Hampshire Franklin and Hampden Agricultural Society

and Three County Fairgrounds Redevelopment Corporation (hereafter the “corporate

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defendants”) are proposing to demolish several buildings on the Three County

Fairgrounds and new buildings in their place.

7. The present use of said buildings is a pre-existing nonconforming use

under the Northampton Zoning Ordinance

8. (a) The Table of Use Regulations which is Attachment 1 to the

Northampton Zoning Ordinance, 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.

8(b) The Three County Fairgrounds are located in the Special Conservancy Zoning

District according to the official City of Northampton Zoning Map.

9. A special permit was issued for other buildings on the Three County

Fairgrounds, and recorded on January 27, 1981 at Book 2207, Page 335 in the

Hampshire County Registry of Deeds.

9. (a) Section 350-9.3 of the Northampton Zoning Ordinance is entitled

“Change, extension or alteration of legally preexisting nonconforming structures, uses or

lots.”

9(b) Section 350-9.3 of the Northampton Zoning Ordinance 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

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 home.

10. The proposed destruction of buildings and the construction of new

buildings on the Three County Fairgrounds requires a special permit.

11. The proposed destruction of buildings and the construction of new

buildings on the Three County Fairgrounds cannot be done lawfully either under Section

350-9.3 of the Northampton Zoning Ordinance, because it goes beyond extension or

alteration of a legally preexisting nonconforming use.

12. The proposed destruction of buildings and the construction of new

buildings on the Three County Fairgrounds will have an adverse impact, including but

not limited to traffic, lighting and drainage, on the land of plaintiff Maria F. Tymoczko

and other nearby landowners.

13. The defendants know or should know that under the law they must obtain

a special permit in order to proceed with the proposed destruction of buildings and the

construction of new buildings on the Three County Fairgrounds.

14. The defendants have failed, neglected and refused to apply for a special

permit for the reasons set forth in the July 14 email, to-wit: they want to prevent plaintiff

Maria F. Tymoczko and others whose land abuts or is near the Three County

Fairgrounds from having any meaningful right of appeal.

15. Bruce Shallcross, Treasurer and a member of the Board of Directors of

defendant Three County Fairgrounds Redevelopment Corporation, stated as follows in

an article in the Daily Hampshire Gazette, Thursday, October 14, 2010, at page A1:

Bruce Shallcross, general manager of the Three County Fair, said work on
the first phase of the fairground’s redevelopment will begin Nov. 5, and
include the demolition fo the fairground’s aging horse barns, which house

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 550 stalls, Those barns will be replaced with three 100-stall barns, along
with two outdoor riding rinks, Challcross said.
* * * * *
Phase one is due to be completed by May and is estimated to cost $4
million, Shallcross said. Those costs will be paid for by a state bond, he
said.

15. Defendants have already established a construction schedule, which they

intend to pursue regardless of the adverse impacts on neighboring landowners.

16. Defendants have already established a construction schedule, which they

intend to pursue regardless of any judicial appeal from their applications for site plan

review and a G.L. c. 40A, § 6 finding, now pending respectively before the Northampton

Planning Board and Zoning Board of Appeals.

17. The conduct of the defendants, if they are allowed to carry out their

scheme described herein, constitutes misappropriation of the $4 million state grant

which is the major source of their project funding. Such funds cannot be misused to

trample upon the constitutional and property rights of the plaintiff and other neighboring

landowners.

First claim for relief: Ruling under G.L. c. 240, § 14A

18. Paragraphs 1 through 17 above are hereby re-alleged as though fully set

forth herein.

19. The land court has exclusive jurisdiction of this action under G.L. c. 240, §

14A.

WHEREFORE, plaintiff Maria F. Tymoczko prays that the Court adjudicate the

manner and extent to which the provisions of the Northampton Zoning Ordinance are

applicable under the facts and circumstances alleged above in this complaint.

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 Second claim for relief: Equitable relief under G. L. c. 185, § 1(k)

20. The allegations of Paragraphs 1 through 19 above are re-alleged as

though fully set forth herein.

21. Plaintiff Maria Tymoczko needs equitable relief to support and supplement

the G.L. c. 240, § 14A ruling sought in this action, to protect her from having her

constitutional right to petition the court for redress of grievances rendered meaningless

by the defendants misconduct in ignoring and evading their legal obligations under the

Northampton zoning ordinance.

WHEREFORE, plaintiff Maria F. Tymoczko requests that the Court grant a

preliminary injunction and permanent injunction as the court may deem appropriate,

ordering the defendants and their officers, directors, employees, agents, consultants

and all others acting in concert with them to refrain from commencing construction on

their proposed project at the Three County Fairgrounds until they obtain a special

permit from the Northampton Planning Board and any judicial appeal from that permit is

finally adjudicated;

AND WHEREFORE plaintiff Maria F. Tymoczko also asks the court to grant such

other and further equitable relief as the court deems just and proper, and to award them

the costs of this action.

Plaintiff Maria F. Tymoczko, by her attorney, Dated October 25, 2010

________________________________
Michael Pill, Esq., BBO# 399880
Green, Miles, Lipton & Fitz-Gibbon, LLC
77 Pleasant Street, P.O. Box 210
Northampton, MA 01061-0210
Phone (413) 586-8218; FAX (413) 584-6278; email mpill@verizon.net
MP/csh/L1.976.Tymoczko

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