Letter: Defining Second Duplex On Single Lot As Complementary Use Sets A Dangerous Precedent

by Becky Miller and Josna Rege

Many thanks to the Indy and to Maura Keene for covering the important July 27 ZBA Public Hearing on the proposal for a special permit to construct a second duplex on a single lot on 798-800 North Pleasant Street. (Look here fo the Zoom video from this meeting). Thanks also to the commenters for their valuable input and analysis. As residents of the Farview neighborhood where this proposed new construction is located and co-authors of the neighborhood letter signed by 26 residents and counting, we would like to weigh in on some of the points made in the article and comments and add new information. We speak for ourselves here and do not claim to represent the views of the whole neighborhood.

Because the implications of this decision have far-reaching consequences beyond our neighborhood, we urge all Amherst residents to read the ZBA’s July 27 and September 28 meeting packets for 798-800 N. Pleasant Street, which contain the collective and individual letters from residents as well as documents from the owners and the town.

Maura Keene rightly points out that among the neighbors’ chief concerns are the proposed two driveways with both entry and egress to be located on the narrow, dead-end Old Town Road. This street, like all the others in our neighborhood, has no sidewalks. Our letter draws attention to the dangers posed by such a scenario, especially in light of all the foot traffic on that street, and calls for the driveways to be returned to North Pleasant Street which has sidewalks and crosswalks. We also question the rationale put forth by the town to move a nearby bus stop from its long-time location to directly in front of the current driveway of 798-800 North Pleasant. Aside from asking for an explanation as to why residents were not consulted prior to this decision, we wish to appeal this decision by the town and insist that community members be included in further discussions about this critical issue.

Letters to the ZBA from neighborhood residents express concerns about increased traffic, noise, and light, issues that have not been adequately addressed by the Casey brothers’ proposal. As important as they all are, we believe that these concerns should not eclipse the overarching ,and potentially precedent setting issue that the proposed project is not a permitted use under the zoning bylaw for RN neighborhoods. If it were a permitted use, why would it require a special hearing in the first place? 

The article fails to mention that one of the chief concerns cited in our letter is the concept of “complementary use” to support building a second non-owner-occupied duplex on the same site as an existing one in an RN-zone. (Thanks to Rob Kusner and Denise Barberet for taking up this point in their comments.) The proposed construction is neither complementary to nor compatible with our residential neighborhood of primarily single-family houses. Crucially, defining “complementary use” in a way that allows the construction of a second duplex on a single site in an RN neighborhood sets a truly dangerous precedent, not only for our neighborhood, but for the entire town.

The article reports as fact co-owner David Casey’s assertion that what ultimately forced a complete gutting and rebuilding of their existing duplex were squatters who occupied the building in early Spring, 2020 (after the student tenants left due to the pandemic). Let’s be clear: this is David Casey’s opinion. The facts tell a different story. For the last 18 years, the Caseys have systematically failed to adequately maintain and repair their building and surrounding grounds. Complaints by neighbors have gone largely unheeded. By 2020, not only was this property infested with rats and cockroaches, but the town inspectors determined that a near total rebuild of the duplex was necessary. 

Indeed, the Casey brothers have an abysmal track record of health and safety violations since the purchase of their property in 2004. An Order to Correct from the Town of Amherst, issued after property inspections in May and July of 2020 and, citing a long list of safety and public health issues, “found it to be in violation of the Minimum Standard of Fitness for Human Habitation.” Given this history, what evidence do we have that the owners would become responsible landlords if granted the Special Permit to proceed with their proposed nonconforming use? There is nothing about their past record that suggests that they would behave more responsibly going forward.

Further, as of July 31, 2023, the Casey brothers do not have a rental permit for their existing renovated duplex nor do they have a local agent, both of which are required by the Town of Amherst. (The Caseys are absentee landlords who reside in Boston.)

Christine Gray-Mullen rightly expresses concern about the dangers to pedestrians in locating two driveways on Old Town Road and about problems of visibility at the corner of Old Town and North Pleasant. Overall, however, she suggests that “the proposed parking would offer an improvement to neighborhood aesthetics” and “reduce vehicle traffic”; We disagree. If, as she also asserts, “uncontrolled parking often exceeds 15+ vehicles for the existing 7 residents,” then, with 8 more rooms added to the existing 7, where would the excess traffic go? Just ten proposed on-site parking spaces plus one handicapped space would not accommodate all the residents and their guests and, as Town Councilor Cathy Schoen pointed out at the hearing, the UMass-Amherst parking lots have long waiting lists and parking permits there are never a given. Parking for the excess traffic, especially on weekends, would very likely spill over into the Farview neighborhood.

We are glad that the ZBA has continued the public hearing until September 28, apparently to give the owners time to provide answers to some of the questions raised by the board. It will also give the owners time to hire a lawyer, something they stated that they intend to do. The ZBA has its own homework to do in the intervening time, including seeking clarification of the ambiguous concept of complementary use; seeking advice as to the legality of its application in this case; analyzing the likely consequences and implications for the future if it were to be applied to RN-zoned neighborhoods; and exploring alternatives to moving a bus stop into the lot’s driveway.

The continuation also gives town residents and abutters a window of time to make our own views known. This is especially important given that the first public hearing limited public comment to only 20 minutes, after switching the agenda as posted so that our item was taken up second, not first as it has been listed, and making residents wait for more than two hours. By then, only five speakers remained out of a much larger number of people who had originally shown up at 6 pm. Many people had to leave, especially those who were elderly people and parents of young children.

To return to Julian Hynes’ question in response to Maura Keene’s report: do the owners have a right to build a second non-owner-occupied duplex on a lot in an RN zone? While the answer is still an open one (which is why they needed to apply for a Special Permit in the first place), they have nevertheless gone ahead with significant tree-cutting and site-clearing, as if there is an assumption that the project will be green-lighted. This action is of deep concern to members of the neighborhood and should be of concern to all Amherst residents given the long-term implications.

Does the ZBA have the power to deny the owners’ request for a Special Permit to go ahead with a non-conforming use of the property? If it does not, then what is the point of having zoning laws at all?

We hope that concerned Amherst residents will submit public comment to the ZBA (at planning@amherstma.gov, cc: watchillar@amherstma.gov and brestrupc@amherstma.gov) and attend the second (and most likely, the final) public hearing on September 28.

Becky Miller & Josna Rege are residents of Amherst’s Farview neighborhood.