ZBA Hears Appeal Of Citation For Too Many Occupants At 25 Nutting Avenue

Report On The Meeting Of The Zoning Board of Appeals, February 9,2023

This Meeting was held over Zoom and was recorded. It can be viewed here. 

Present
Steve Judge (Chair), Tammy Parks, John Gilbert, Craig Meadows. Associate members Vincent O’Connor and Sarah Marshall

Staff: Rob Morra (Building Commissioner), Chris Brestrup (Planning Director), Steve McCarthy (Planning Department)

Property At 25 Nutting Avenue Cited For Too Many Occupants
On August 30, 2022, Building Inspector John Thompson cited Mohamad and Simin Malekniaz of Leeds, owners of a house at 25 Nutting Avenue, because there were seven unrelated occupants living at the house. This violated Article 12.172 of the Zoning Bylaw, which states that no more than four unrelated individuals can occupy a dwelling unit. The owners were ordered to bring their property into compliance by September 14, 2022 and were notified that failure to do so would subject them “to non-criminal disposition of $100/per offense, with each day the violation continues deemed a separate offense.” The property is managed by Pipeline Properties at 6 University Drive, Amherst which had signed a lease agreement in the spring with four unrelated men, but then made an oral agreement to allow three more to move in.

Mohamad Malekniaz appealed the citation to the Zoning Board of Appeals asking to “Amend the notice of violation so as to eliminate the imposition of any fines as of September 14, 2022,” because the three additional renters have legal rights and cannot be removed without due process.” He delivered a notice to quit to the three individuals illegally occupying the premises on September 26, 2022. Meanwhile, the three men filed an emergency order with the Housing Court asking that Malekniaz provide them with suitable, comparable housing with similar rent and living accommodations within walking distance to UMass. They also alleged that Malekniaz had entered the premises without giving 24-hour notice and that the six-bedroom house with two-and-one-half baths is not a crowded situation for seven occupants.  They also noted that the inspector had found no health or safety violations requiring immediate action.

The tenants were evicted by the Housing Court on December 30 and subsequently moved out of the house. Building Inspector Rob Morra said that because the owner took the proper steps to bring his property into compliance and the tenants have left the premises, no fines were imposed. He was satisfied by the actions taken by the owner, and the ZBA passed the withdrawal of the appeal unanimously.

Board Fails To Agree On Charges For Legal Ads
The meeting continued with a discussion of how much an appellant should reimburse the town for the cost of the required published legal notices of public hearings before the ZBA. In the past, the Town fee has been $75-$100 for an advertisement that can actually cost $800-$1000. A previous ZBA had increased the fee to $300 for all permits, but a suggestion had been made that perhaps this Board might want to lower the fees for owner-occupied duplexes and single-family residences. Planning staff consulted with the Planning Board Chair Doug Marshall whose opinion was to charge $300 for all applications to the Planning Board, since the Planning Board deals with large projects, not single-family homes. Because the jurisdictions do not overlap, standardizing the fee structure of the two boards did not seem to be required.

Sarah Marshall asked why applicants’ fees could not cover the entire cost of the legal ad. Planning Director Chris Brestrup replied that the ad would have to be submitted to the newspaper more than a month before a hearing in order for the cost to be known and paid in time to meet all the legally required calendar day limits and thus would prolong the process for the applicant. If the actual cost of the ad were not known before the hearing was scheduled, it would be up to the staff to collect the money afterwards which could take considerable time from their other duties.

Vince O’Connor thought the fee shouldn’t be the same for a small project as for a large one, even though the cost of the notice was similar. ZBA Chair Steve Judge did not want to make the fees so high as to discourage applications. The discussion of whether or not to reduce the fees for owner-occupied projects will continue at the March 9 meeting.

ZBA Introduced To Hanneke And DeAngelis’ Proposed Zoning Changes For Duplexes, Triplexes, And Townhouses
Brestrup presented a Power Point summarizing the 44-page amendment to the Zoning Bylaw proposed by Town Councilors  Mandi Jo Hanneke (at large) and Pat DeAngelis (District 2) which aims to streamline the permitting process for owner-occupied  and affordable duplexes and add a new category of triplexes. Under the proposed changes, owner-occupied and affordable duplexes in most zoning districts could be approved by the Building Commissioner with no public hearing if they comply with the dimensional requirements of the zoning district. Other duplexes and triplexes would go from requiring a Special Permit to a Site Plan Review. Also, the sections of the bylaw that require duplexes to comply with general design guidelines would be eliminated. The Amherst Master Plan approved by this Town Council states that the town should have more specific and detailed design guidelines before housing density is increased.

The major difference between a Special Permit (SP) granted by the Zoning Board of Appeals and a Site Plan Review (SPR) granted by the Planning Board is that a SPR only looks at the exterior of the property (such as landscaping, parking, and lighting) while the ZBA looks at the proposal as a whole–the interior use of space as well as the exterior and the impact of any changes in use on abutters. Also, a Special Permit can be appealed, but there is no appeal process for site plan review if abutters feel that a use is inappropriate. Both permits can carry conditions that are enforceable by the Building Commissioner.

Many questions were raised by board members. Sarah Marshall was not convinced that the proposed changes to make getting a permit easier will actually increase the housing supply. O’Connor stated that, while he may have his personal opinion on the proposed zoning amendments, it is a constitutional conflict of interest for the ZBA to have an opinion on a legislative matter. He compared the situation to the U.S. Congress asking the Supreme Court for its opinion on a voting rights bill that was being considered. Judge emphasized at least three times that the zoning amendments being considered were not a product of the staff presenting them at this meeting, and committee members thanked staff for the time they devoted to explaining these amendments to the ZBA prior to the meeting with Councilors Hanneke and DeAngelis on February 16.

Judge concluded the meeting by asking how these amendments will accomplish the councilors’ stated goals of increasing housing affordability, sustainability, and diversity because, he said, “The Councilors are not familiar with ZBA processes nor how Special Permits benefit the town.”

The ZBA will meet again on February 16 to discuss the proposed zoning changes with Hanneke and DeAngelis.