REPORT: ZONING BOARD OF APPEALS MEETING (ZBA) (5/21/20)

The meeting was held via Zoom webcast and was recorded for possible future broadcast.  Participating:

Full Members: Steve Judge (Acting Chair),  Keith Langsdale, Dillon Maxfield, Joan O’Meara, Tammy Parks

Associate Members: Peter Berek, Robert Greeney, Craig Meadows, Sharon Waldman

Also participating: Christine Brestrup (Town Planner), Maureen Pollack (Zoning Enforcement Officer), David Waskiewicz, Jon Witten (attorney, K-P Law) 

The primary agenda item was a discussion of  proposed changes to the Zoning Board of Appeals (ZBA) Rules and Regulations. The principal reasons for updating the ZBA’s rules are (1) to make technical changes to conform to the Town’s new Charter, (2) to clarify the rules, and (3) to make them more rigorous.

Attorney Jon Witten from KP Law was present to advise the ZBA on language changes in the Rules and Regulations.  He suggested that the structure of the rules be changed so that each ZBA task (Special Permits, Comprehensive Permits and Waivers, and Variances, and adjudication of appeals of decisions of the Zoning Enforcement Officer) be rewritten as a separate section, although there would be some overlap. 

There was considerable discussion about the section on Comprehensive Permits for projects that are developed under Ch. 40B of Massachusetts General Law (MGL), which involves special conditions for developers to include affordable housing. Witten pointed out that “developers ask for the moon” and said that stronger regulations would allow the Board to guide developers to build what Amherst needs, which he identified as senior housing, family housing,  very low income and moderate income housing, etc…

Amherst currently has more than the legally required 10 percent affordable units. The Board was reminded that the 2020 census might indicate a large enough increase in the total number of housing units to lower the percentage of affordable units in town.  Thus, The Town must always consider the need to keep adding to the stock of affordable housing units. 

Comprehensive Permits are negotiable. Witten advised that the ZBA should require a  pro forma statement from developers with detail of their anticipated project costs and profits, in order to create a road map of the types of conditions it can impose.

Witten noted that many towns not only require a pro forma for any project requesting a Comprehensive Permit but that it be signed “under pains and penalties of perjury.” It is a requirement of the funding agencies. The Board cannot impose conditions that make a project “uneconomic” (reduces the number of permissible units to such an extent that the project can be proven to be unprofitable) or that it would negatively impact health and safety.

Waivers to the Zoning Bylaw are unique to Comprehensive Permits. However, Footnote A of Table 6 in the current Bylaw allows waivers of dimensional requirements under certain circumstances, such as if the project would fit in with already existing abutting buildings.

New regulations will not take effect until they have been approved by the five full members of the ZBA. With the ZBA expecting an application for a Comprehensive Permit during the week of May 25, the five regular members voted to continue the discussion until 6 p.m. on May 28, and in the meantime, new sections will be drafted. They approved making the minor changes to the Rules and Regulations that are required by the Charter. 

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