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Another Voice: Amherst Zoning Board usurps power of Town Board

By Jo K. Nasoff-Finton

I applaud the July 11 editorial “Amherst taxpayers will foot the bill as boards battle over zoning authority,” but am firmly of the belief that something – even a lawsuit at taxpayers’ expense – should be done to stop the egregious overreach of power displayed by the Amherst Zoning Board in its issuance of “use” and other variances that fly in the face of zoning and subdivision powers reserved for planning boards and legislative bodies under New York State Law.

In 2006 our neighborhood spoke out against the issuance of a variance from the Amherst Zoning Board for a proposed development of 53 “patio” homes on a 25-foot-wide private street (public streets would have 50-foot right-of-way widths).

The Planning Board had previously turned down a request to increase the density for the same proposed subdivision, so the developers took to requesting an “area variance” to decrease the right-of-way size and thus provide acreage for additional homes and reduced setbacks as an alternative way of increasing density.

Twice during the hearing, the petitioner’s attorney himself stated that the developer was seeking “open development area” approval.

However, Section 280-a (4) of New York State Town Law explicitly grants town boards (not zoning boards) the authority to “establish an open development area or areas within the town, wherein permits may be issued for the erection of structures to which access is given by right of way or easement, upon such conditions and subject to such limitations as may be prescribed by general or special rule of the planning board …”

For the Zoning Board of Appeals, which is an appointed body, to have even considered a petition for a private street for a new subdivision as an “area variance” usurped a power reserved for a legislative body of elected officials, in this case the Amherst Town Board.

In fact, prior to this 2005 instance, the Amherst Zoning Board had already facilitated the development of several relatively dense patio home developments (i.e., reduced taxpaying properties) by issuing use and area variances for access via narrow private roads.

It seems obvious that decisions affecting the use of land and density of development may have significant impact on property values and on the character of neighborhoods and communities.

Because of this, state laws have rightly placed these significant types of approval powers in the hands of elected, not appointed, bodies so that decision makers are more directly accountable to the electorate.

Jo K. Nasoff-Finton, of Getzville, is a land use planning and development consultant, a former senior planner for the Town of Amherst (1975-1980), and the former director of development and deputy director of the Erie County Industrial Development Agency (1983-2007).

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