Wal-Mart
Town sued over rezoning decision
by JESSICA L. FINCH Associate Editor

The Town of Amherst has been sued by developer Anthony Cimato over the Town Board's decision to rezone 4300 Millersport Highway - a proposed site for a Wal- Mart.

Cimato, who has owned the property for approximately 30 years, is represented by Attorney Jeffery D. Palumbo of Renaldo & Palumbo. They are claiming the town's vote to rezone was illegal.

In September, the Town Board voted 6-1 - a supermajority decision - to rezone the 67.2 acres from SC-shopping center to TND-town neighborhood district.

"The town's action constituted a severe abuse of discretion, and its ultimate decision was reached in an arbitrary and capricious manner," Palumbo said.

In December 2005, Cimato, of Cimato Brothers Construction Inc., submitted a site plan to the town for the development of a Wal-Mart at 4300 Millersport Highway.

"The Town-initiated rezoning of 4300 Millersport (Highway) was an act of illegal spot zoning, exceeded the authority upon which a town's zoning authority is based, and failed to comply with the State Environmental Quality Review Act," Palumbo stated in a Jan. 4 press release to The Amherst Bee.

Amherst town attorney Tom Jones said the town received details of the lawsuit in which Palumbo is seeking that the rezoning be overturned, which would zone the parcel SC.

"We are defending that all actions taken by the town were legal and proper and (the zoning) should stand," Jones said.

The case has been assigned to State Supreme Court Judge Kevin Dillon, who will begin deliberations on the case Feb. 22. Both sides must submit their cases by the end of January.

Palumbo said his client is also considering another lawsuit to seek damages in excess of $3 million.

In the event Dillon sides with Cimato, Palumbo said the building of a Wal-Mart would again be proposed. Should the zoning remain TND, then Cimato would consider a development within those limitations.

"A municipality in the State of New York is authorized to zone and rezone property in an effort to protect the public health, welfare, safety or morals. It cannot, however, rezone property simply to appease certain anti-Wal-Mart residents," Palumbo said.

The rezoning was part of a town program to rezone a section of Millersport Highway in accordance with the town's recently adopted master plan. Thirty parcels were voted on by the Town Board at the same meeting where it voted to rezone 4300 Millersport Highway.

That same day a petition of 1,815 signatures opposing big box development was filed. Many residents speaking against the development were concerned about flooding, wetlands, traffic, soils and quality of life.

Palumbo said when Cimato submitted the Wal-Mart proposal in 2005, a shopping center was a use permitted by the Town Code of Amherst.

"Less than three weeks later, the town stated its intent to rezone 4300 Millersport Highway in an attempt to prohibit Wal-Mart from developing the northeast Amherst site," Palumbo said.

He concluded that the town failed to undertake its rezoning effort in a proper, careful and reasonable manner and adding that there was neglect of the environmental review required by state and local laws.