Christopher R. Vaccaro

Conflicts between town and gown are business as usual in Amherst, home to UMass’s flagship campus, as well as Amherst College and Hampshire College. With about 28,000 students in a town with fewer than 40,000 residents, problems arise when students and non-students compete for housing.

Amherst recently created a Town and Gown Steering Committee (TGSC) comprised of town and UMass representatives to commission a study of the town’s housing and economic growth. Last December, TGSC issued a report framing Amherst’s housing problem and recommending solutions. Amherst’s residential growth is mostly attributable to UMass’s expansion, causing higher rents for student housing. As a result, there are financial incentives for owners of off-campus housing, including single-family dwellings, to convert their properties to student housing. Non-student housing decreases and becomes less affordable. Also, high-spirited students (especially undergraduates) have schedules and social habits that can annoy working families. As student housing infiltrates traditional neighborhoods, the quality of life for non-students often erodes.

TGSC’s report recommends that UMass expand its on-campus student housing to mitigate these problems. It suggests “public-private partnerships” between UMass and developers can achieve this goal, but acknowledges the legal and political challenges associated with private developments on state land. Given these challenges, years may pass before there is meaningful follow-through on TGSC’s recommendations.

A Partnership Derailed

Meanwhile, a privately funded off-campus student housing project was under consideration for a 150-acre, residentially zoned woodland near UMass. The property owner, W.D. Cowls Inc. Land Co., contracted to sell the parcel to Landmark Properties, a national developer specializing in off-campus student housing. Landmark envisioned a cluster development of 175 dwelling units with 641 bedrooms. The development would preserve open space and vegetation, require less road construction and infrastructure, and minimize impacts on wetlands, while boosting Amherst’s student housing inventory and attracting economic development off-campus.

Amherst’s zoning bylaw allows cluster developments in residential zones, including zero lot line single-family dwellings, duplexes and attached dwellings on small lots. Cluster development lots generally must have street frontage of at least 100 feet, but the planning board may reduce frontage requirements for up to 50 percent of the development’s lots. The lots must have enough area to contain a circle with a diameter equal to the “minimum standard street frontage required in the district.”

Abutters filed suit in Land Court to stop the project in 2013. Entangled claims, cross-claims, amended pleadings and cross-motions for summary judgment followed among the abutters, the town, Landmark and Cowls. Landmark withdrew its zoning applications, but continued in the litigation.

The Land Court judge adeptly sorted out the parties’ arguments, and narrowed the case to two issues. First, does the zoning bylaw require special permits for non-owner occupied duplexes in cluster developments? Second, does the bylaw allow the diameter of the frontage circle for a particular lot to equal the smaller frontage that the planning board requires, or must the diameter be 100 feet regardless of the reduced frontage? Cowls and Landmark argued that duplexes in cluster developments should not require special permits, and that the smaller frontage permitted by the planning board should reduce the frontage circle’s diameter. The abutters and the town opposed their arguments. The Land Court rendered its decision last spring.

On the first issue, the court noted that the bylaw generally requires special permits for non-owner occupied duplexes in residential districts. However, the bylaw allows cluster developments as-of-right in residential districts, without requiring special permits for duplex housing. Accordingly, the court agreed with Cowls and Landmark that special permits are unnecessary for duplexes in the project.

Regarding the second issue, the court acknowledged the bylaw’s ambiguity, and that each side’s interpretation was reasonable. However, the court ruled in the town’s favor, citing the court’s tradition of deferring to municipalities’ interpretations of their ambiguous bylaws. This tradition seems questionable, because it allows municipalities to make ambiguous rules without consequence, but the court’s approach is consistent with prior court decisions in Massachusetts.

As of now, Landmark seems to have abandoned the project, after spending about $1 million on permitting and consulting. Cowls will have to find another developer, unless Landmark returns to the table. It will be interesting to see which housing initiative, if any, finds success first in Amherst: on-campus housing built by TGSC’s recommended public-private partnership, or off-campus housing on the Cowls property. In the meantime, housing pressures continue.

Christopher R. Vaccaro is a partner at Dalton & Finegold LLP in Andover.