ADU Developer Sues Amherst and ZBA for Decision to Not Allow Oversized ADU

Attorney Michael Pill filed a case in land court on August 25, charging that the Amherst Building Commissioner made a correct decision concerning the application of the zoning bylaw to the construction of a 1200 square foot accessory dwelling unit (ADU) at 27 Newell Ct. and that the contrary interpretation by the Amherst Zoning Board of Appeals (ZBA) is a nullity because the “board lacked subject matter jurisdiction.”

The plaintiffs are listed as Newell Court LLC, Gray and Taylor LLC, Kilerine Properties LLC, Susan Han as trustee of the Revocable Indenture of Trust of Susan Han, and Wild Onion Rentals LLC. The defendants are the Town of Amherst and the Amherst Zoning Board of Appeals.

Pill’s arguments are twofold. He claims that Building Commissioner Rob Morra’s determination that the two-bedroom, one bath second floor of the ADU is an attic because it is slightly less than one-third the area of the first floor and therefore should not be counted in the gross floor area of the ADU is correct. According to the zoning bylaw article 5.011, the maximum GFA for a protected ADU is 900 square feet. If the finished space on the second floor is added to the GFA it would bring the total GFA to 1188 SF. ADU’s of up to 1200 SF are allowed under the bylaw but only if the ADU or the primary residence is owner-occupied.

Pill’s second argument is that the appellant to the ZBA, abutter Noah Kuhn, did not file his objection to the building permit within the 30 days allowed. Kuhn stated that he had requested the plans from Morra in December but did not receive them until May. Pill stated that Kuhn should have filed a public record request. He contends that because the complaint was not filed on time, the ZBA should have denied his appeal. Pill cites several instances in Massachusetts case law where an appeal was denied because it was filed late.

The ZBA upheld the appeal after its members decided unanimously that the design of the ADU in question violated the intent of the bylaw.

Regarding a 2015 case involving a cluster development in Amherst, Pill states in his complaint, “When there is more than one reasonable interpretation of a bylaw, deference will be given to the authorities that initially drafted them.” The Planning Board and Town Council drafted the ADU bylaw, and the Town Council approved it.

Much is at stake in this lawsuit. The complaint lists nine other properties in Amherst owned by the plaintiffs that have the same ADU design and are either planned or being constructed. These are located on Gray Street, Pine Street, North Whitney Street, South East Street, Chestnut Street, Shays Street, West Street, Taylor Street, and College Street. Only the structures on Newell Court and Taylor Street are nearing completion. The other properties only have the foundation poured or are waiting for a permit.

This week, the Local Historic District Commission reviewed plans to build two 1200-square-foot ADUs on Lincoln Avenue.

Read More
Are Amherst Developers Flouting Town’s ADU Bylaw? (Amherst Indy)
Read the full ADU bylaw here.
Read Attorney Pill’s Complete Land Court Complaint here.