A judge has overturned the Amherst Town Board's decision to rezone 33 acres on Renaissance Drive.
State Supreme Court Justice Joseph R. Glownia ruled that the board violated a State Environmental Quality Review process and therefore couldn't rezone the property. Developer Davis R. Tiburzi said he plans to appeal.
Tiburzi had asked the Town Board to rezone the property from single-family homes to multiple-family dwellings so he could build as many as 160 condominiums, town houses and apartments.
That didn't sit well with several neighbors who own nearby homes worth up to $650,000. The Renaissance Place Association, owners of 154 nearby luxury apartments, and three residents filed the suit.
Glownia did not rule on whether the property should have been rezoned, only that the town didn't properly follow state laws to rezone land.
The lawsuit contended that the town cut short an environmental review, doing only a draft study instead of a final version, said Arthur J. Giacalone, the residents' attorney.
The residents claim the Town Board rushed the rezoning because Town Board Member James Hayes was leaving Dec. 31 to take a seat in the State Assembly. The rezoning would not pass without his vote.
And the person most likely to replace Hayes, Planning Board member Todd E. Shatkin, had voted against the rezoning when it came before the Planning Board.
A final environmental impact statement would not have been ready before Hayes' left office, the residents contend.
Town Attorney Phillip A. Thielman says the Town Board's timing was not affected by Hayes' upcoming departure and a final environmental study was unnecessary.
"I think we did a sufficient review," Thielman said.
The judge found the hand-written document accompanying the board's decision Dec. 7 that the project wouldn't harm the environment was insufficient.
To protect itself from any legal challenge, the board voted again on Dec. 21 that the project wouldn't harm the environment and this time had a more complete typed document ready.
This is where the town ran into trouble, according to Glownia.
While the board revoted on the environmental impact, it never voted again to rezone the property. State law requires the board look at the environmental impact before rezoning.
"You have to know whether you're harming the environment before you approve a rezoning," Giacalone said. "It makes no sense that you would first rezone and then issue a negative (environmental) declaration."
Tiburzi's attorney, Jeffrey D. Palumbo, said the Amherst Town Board did revote on the rezoning Dec. 21, but that for some reason the vote was not included in the minutes. And Town Attorney Phillip A. Thielman called the judge's decision a technicality.
By revoting on the environmental impact the Town Board was reaffirming its desire to rezone the parcel, Thielman said.
Those arguments did not hold up in court.
In addition to appealing the court decision, Tiburzi may also have the option of asking the Town Board to rezone the parcel for a second time. Thielman said more research was needed before he could give a definite answer.