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Editorial: Board vs. board for Amherst zoning supremacy

To outsiders, the battle between the Amherst Town Board and Zoning Board is perplexing. To residents and taxpayers, it is costly and ridiculous. To developers, it is a delicious opportunity to exploit an inherent governmental weakness and run their plans right past elected oversight.

So, who wins? Some might rightly say developers in the case of two projects: a medical office building on Maple Road and an apartment complex on North French Road.

In both cases the Town Board rejected requests for a change in zoning, which should have been the end of it. But the developers then went to the town’s Zoning Board and received what is called a “use variance,” whose litmus test for approval consists of four nebulous criteria.

Neither the Town Board nor residents were pleased with what they saw as an end around. So the Town Board decided to sue the Zoning Board over the apartment complex. The town attorney advised that it was too late to sue over the medical office building.

One town body suing another is not unusual. There is a similar case right now in Lockport. It does raise questions about how these boards came to such disagreement and which has the final word.

In Amherst, the Town Board chooses the five members of the Zoning Board, including the chairman. Safe to say that the Zoning Board’s priorities are likely to shift based on which party is in power when appointments are made. The 3-2 Republican majority on the Town Board a few years ago has now turned into a Democratic majority.

The recent cases of the medical office building and apartment complex are the first examples in several years of the Zoning Board overruling the Town Board.

The Zoning Board can allow development on a property without changing the zoning if the project meets these four tests:

• The owner cannot get a reasonable return for the property without it.

• The owner faces a hardship that does not apply to other nearby properties.

• The owner did not create this hardship.

• Granting the variance will not alter the neighborhood’s character.

The tests are awfully subjective. What developer is happy with the rate of return? What is a reasonable rate of return? And how much hardship is enough to trigger a variance?

Entire neighborhoods came out in opposition to both the medical office building and apartment complex. Still, the Zoning Board granted the variances.
And now it’s on to the courts. The town attorney recused himself from the legal action because his office represents both boards. The Town Board voted to hire Hancock Estabrook to prepare the suit, expected soon. The Zoning Board is in the process of hiring its own law firm.

Amherst taxpayers can expect to receive the bill for both.

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