Issues and Analysis: Zoning Primer – What Is The Zoning Board Of Appeals (ZBA)?

The Zoning Board of Appeals (ZBA), traditionally one of the most important multi-member bodies in determining the look and feel of Amherst, has a lofty purpose to “promote the health, safety, convenience, and general welfare of the inhabitants of the Town of Amherst.” To accomplish this, it decides on many of the applications for Special Permits, Variances, Comprehensive Permits, and Appeals (of Actions of the Building Commissioner), as well as conducting the necessary public hearings related to these. All of its meetings and public hearings are open to the public.

Responsibility for Certain Special Permits
If there is an application for a Special Permit for a residential or business use that is not allowed “by right” (meaning its use is not covered by the given zoning district),  it will probably be up to the ZBA to review it, using a process that is intended to ensure “a harmonious relationship between proposed development and its surroundings,” to ascertain whether the proposal is consistent with the purpose and intent of the Town’s Zoning Bylaw, and to decide whether to approve it.

(see Section 10.38, https://www.amherstma.gov/DocumentCenter/View/54392/Zoning-Bylaw-Complete-Nov-2020) The ZBA (although sometimes it is the Planning Board, rather than the ZBA, that is responsible as the Special Permit Granting Authority or SPGA) (see https://www.amherstindy.org/2021/05/28/issues-analyses-a-zoning-primer-how-building-permits-are-decided/ ) must conduct detailed reviews of proposed structures and uses that might have a substantial impact upon such things as traffic, utility systems, and “the character of the town.” 

The ZBA (or Planning Board if it is the SPGA) can grant a Special Permit if the proposed structure and use are: 

* suitably located in the neighborhood in which it is proposed and/or the total Town;

* compatible with existing uses and other uses permitted by right in the same District;

* would not constitute a nuisance due to air and water pollution, flood, noise, odor, dust, vibration, lights, or visually offensive structures or site features; 

* would not be a substantial inconvenience or hazard to abutters, vehicles or pedestrians;

* would provide adequate and appropriate facilities for the proper operation of the proposed use; 

* would reasonably protect the adjoining premises against detrimental or offensive uses on the site, including air and water pollution, flood, noise, odor, dust, vibration, lights, or visually offensive structures or site features;

* would be in conformance with the Parking and Sign regulations (Articles 7 and 8, respectively) of the Zoning Bylaw;

* would provide convenient and safe vehicular and pedestrian movement within the site, and in relation to adjacent streets, property or improvements (if the SPGA deems that it would be likely to have a significantly adverse impact on traffic patterns, it may require a traffic impact report, and the proposal has to comply with Section 11.2437 of the Bylaw);

* would ensure adequate space for the off-street loading and unloading of vehicles, goods, products, materials, and equipment incidental to the normal operation of the establishment or use;

* would provide adequate ways to dispose of and/or store sewage, refuse, recyclables, and other wastes resulting from the uses permitted or permissible on the site, and to ensure drainage of surface water;

* would ensure protection from flood hazards, considering such factors as elevation of buildings, drainage, adequacy of sewage disposal, erosion and sedimentation control, equipment location, refuse disposal, storage of buoyant materials, extent of paving, effect of fill, roadways or other encroachments on flood run-off and flow, storage of chemicals and other hazardous substances;

* would protect, to the extent feasible, unique or important natural, historic or scenic features;
* would provide adequate landscaping, including the screening of adjacent residential uses, provision of street trees, landscape islands in the parking lot and a landscape buffer along the street frontage, and when a non-residential use adjoins a residential district, an uninterrupted vegetated buffer shall, to the extent feasible, be established and maintained between buildings associated with uses under this section and the nearest residential property boundaries. Where natural, undisturbed vegetation already exists on-site prior to site preparation and clearing, the majority of that vegetation may be retained and included as part of the buffer, along with the addition of such new plantings, selective removals, and other management of site plantings as are determined to be necessary to maintaining an effective year-round visual screen. (see Section 11.3 of the Zoning Bylaw) 

* would protect adjacent properties by minimizing the intrusion of lighting, including parking lot and exterior lighting, through use of cut-off luminaires, light shields, lowered height of light poles, screening, or similar solutions;

* would avoid, to the extent feasible, impact on steep slopes, floodplains, scenic views, grade changes, and wetlands;

* would not create disharmony with respect to the terrain and to the use, scale, and architecture of existing buildings in the vicinity which have functional or visual relationship to it;

* would provide screening for storage areas, loading docks, dumpsters, rooftop equipment, utility buildings, and similar features;

* would provide adequate recreational facilities, open space, and amenities for the proposed use; and

*would be in harmony with the general purpose and intent of this Bylaw and the goals of the Master Plan. 

Variances can be granted when circumstances related to soil conditions, topography, and other conditions would mean that enforcing a regulation would result in substantial hardship (to the developer), and not enforcing it would not result in substantial detriment to the public good, nor would it substantially nullify or stray from the intent of the by-law. The board can impose conditions, such as increased setbacks and lot size. (However, Amherst does not grant variances for “use.”)

Membership
The ZBA should have five full members, all of whom are appointed by the Town Council and all of whom serve three-year terms. The Town Council can also appoint up to four associate members. Each associate member serves a one-year term. An associate member does not vote unless designated by the chair to temporarily fill a vacancy or take the place of a full member who is absent, unable to act, or has a conflict of interest. (See https://www.amherstma.gov/DocumentCenter/View/54392/Zoning-Bylaw-Complete-Nov-2020, Appointments, Section 10.02, page 97)

The ZBA is currently short one member and the position needs to be filled. Statements of Interest for the full member position on the ZBA are due on June 13, with interviews to take place on June 23. (See https://www.amherstma.gov/FormCenter/Community-Activity-Form-14/Community-Activity-Form-Town-Council-App-165) In addition, one full member’s term and all four associate members’ terms will expire in 2021.

The current ZBA consists of the following full members:

Steve Judge, appointed 2019, term expires 2022

Keith Langsdale, appointed 2020, term expires 2021

Dillon Maxfield, appointed 2020, term expires 2023

Tammy Parks, appointed 2020, term expires 2023

Vacancy (1)

and the following associate members:

Peter Berek, appointed 2020, term expires 2021

Robert Greeney, appointed 2020, term expires 2021

Craig Meadows , appointed 2020, term expires 2021

Sharon Waldman, appointed 2020, term expires 2021

Kitty Axelson-Berry has retired from her self-publishing service specializing in memoirs and family histories. She was the editor-in-chief of the Valley and Springfield Advocate newspapers in the 1980s, and has lived in the Amherst area since 1971. She raised three daughters in the Amherst Public Schools and was a member of Town Meeting.