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Local attorneys and law director tell Amherst ZBA to weigh self-created-hardship rules and owner authority
Summary
The law director and private counsel told the board the unnecessary-hardship standard is strict and that purchasers who acquire property with prior knowledge of zoning limits face a high bar for variance claims; an outside attorney said the applicant's filings lacked proof of authority to apply for all parcels and that the board cannot impose conditional uses via a variance.
Legal counsel and attorneys in the audience told the board to focus on the statutory test for an "unnecessary hardship." The law director reminded members this is a quasi-judicial proceeding and that whether a hardship is self-created is a central issue for deliberation.
Attorney Gerald Phillips told the board he had reviewed the application and found no evidence that the applicant had authority from the owner to apply for all parcels, and warned the board that it "has no authority under 11-25.06(a) to give a conditional use." He cited case law stating purchasers who acquire commercial property with knowledge of zoning restrictions generally must accept those limits and cannot demand a variance based on purchase-related hardship.
