Court ruling: Town was within rights to rezone 'Wal-Mart' parcel
by JESSICA L. FINCH Associate Editor

When the Amherst Town Board voted to rezone 4300 Millersport Highway, the proposed site of a Wal-Mart store - effectively killing the project - legal counsel for the landowner announced that a lawsuit would follow.

Now, State Supreme Court Judge Timothy J. Drury has ruled in favor of the town, the defendant in the case.

Jeffrey Palumbo, who represented Cimato and Sons and Anthony Cimato in the case against the town and the Town Board, claimed that the town had rezoned the parcel unfairly.

The town was represented by Alan P. Mc- Cracken, whose efforts were recognized by Town Attorney Tom Jones. He said McCracken worked extremely hard on the case.

"All along I was confident the town had the legal right to zone any property, and this was (compliant) with the Comprehensive Plan," Jones said. "Properties don't have a vested right to a particular zoning without substantial construction ... even then it would be nonconforming."

The prosecutor filed an Article 78, claiming the town's rezoning should be considered invalid because it was "arbitrary 'spot-zoning' and an abuse of the respondents' discretion. The petitioners (further stated) that the re-zoning should be nullified because the required State Environmental Quality Review was not performed before the property was re-zoned."

When word of a proposed 200,000-square-foot Wal-Mart on Millersport Highway spread, residents strongly opposed the big box development, speaking out at board meetings and posting signs against the project. Recognizing the public's influence, the plaintiff claimed the rezoning was done directly to stop Wal- Mart.

"(The petitioner) claim(s) that the respondents improperly and unlawfully bowed to the whim of the vocal minority (or even majority) when they enacted the zoning change in issue," the ruling stated.

Spot zoning, as referred to in the case, was not found to be true because the town followed the recommendation, of a then accepted Comprehensive Plan.

In the plaintiffs' claim, Palumbo stated that the rezoning, also considered a down zoning, to TND- Traditional Neighborhood District, would have more of an impact than the prior SC- Shopping Center zoning.

The ruling, which sided with the town, stated that the Town of Amherst took a "hard look" into whether the rezoning would have adverse impact on the environment, citing the town's request for review from the Planning, Building, Engineering, Traffic/ Safety and Fire departments. According to the case the town was found to have followed SEQRA requirements before making the negative declaration.

"This court has determined that by accepting the Comprehensive Plan in 2004, and re-zoning the property from SC to TND in 2006, the town's intent was to create a lesser density use. As such, the re-zoning does not create the possibility of a significant adverse environmental impact," the ruling released by the court stated.

The ruling blasted the petitioner's calculation that TND would allow for 1.6 million square feet of retail space or 600 homes, responding that such a development would never be allowed.

"The petitioners' calculation is revealed as a self-serving scare tactic when considered together with the attendant circumstances. … It is preposterous to think that a development roughly the size of the (University at Buffalo) North Campus' 'spine' would ever be built in a small village like development," the ruling stated.

Drury sided with the town on every claim within the case. The lawsuit was filed in January.

Palumbo said he will appeal the decision and hopes the Appellate Division will find the Town Board's action unlawful.

"I think Judge Drury allowing the rezoning to stand makes everybody imperiled to being down-zoned," Palumbo said, adding that he believes the town did not follow proper SEQRA regulations.

Council Member Deborah Bruch Bucki said the rezoning process began in January 2006 when she sponsored a resolution requesting the rezoning of the Millersport Highway property. The rezoning was approved in a super majority vote (requiring six votes) in September 2006.