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New restriction pulls rug from under Starbucks plan

The Starbucks battle in East Aurora is far from over, though this week's move by village trustees, in effect, killed the coffee shop giant's current proposal.

In the latest salvo, the village told Benderson Development that its building on the edge of the Main Street traffic circle cannot house a restaurant.

Without directly voting on Starbucks' request for a special restaurant permit, the board slapped strict conditions on developing the 3,000-square-foot building as part of a state-required assessment of any potential environmental impact of the project at the traffic circle.

"We did it to stand up to developers who disregard our code," Trustee Peter Mercurio said.

A last-minute resolution, adopted 4-1, stipulates that no part of the building -- of which Starbucks wants to use half -- can be used as a restaurant.

The only allowed uses for that building would be retail or professional and medical offices, according to the restrictions crafted by attorney Arthur Giacalone, a zoning law expert and longtime critic of how the village handles Benderson projects.

"What we got was plaza-style development," said Mercurio, who initiated the board's latest action. "The area around the circle is too congested with fast-food restaurants."

As the legal delays have dragged on, Benderson has threatened legal action. Benderson attorney Ralph Lorigo argued that the Starbucks plan does meet village code.

"It fits within your code. All restaurants are special permits," he said. "You approved what's there, and you approved it under your code. It amazes me that you don't rely on the village attorney or your Planning Board."

Mercurio and Trustee Libby Weberg argued that Benderson had indicated in 1999 it would not build fast-food businesses at the former site of a Tops supermarket but that is what's evolving.

Village officials insist the site was to be limited to small retail, medical and professional buildings.

But whether the village and Benderson reached a binding agreement remains unclear.

"The issue still remains as to whether prior conditions were clearly formalized," Village Attorney Robert Pierce said. "I think it would be very difficult to defend this."

"It's time the Village Board upholds the integrity of our code and the Village Code approval process," Weberg argued, noting that the plaza design, which she described as pedestrian-unfriendly, is 37 percent larger than planned and includes a drive-through pharmacy.

The board's latest action stipulates that if a court rules that Starbucks can use part or all of the building, it could not include drive-through window.

Mayor David DiPietro, who abstained from the vote, called on Benderson not to pursue court action. "I would hope you'd ask Benderson not to litigate and work with the village to find a compromise," he told Lorigo. "I wish Benderson would reach out and do something positive."

Trustee Elizabeth Cheteny said the board's action is not about Starbucks, but is more about the village maintaining authority over what's acceptable and to ensure that agreements be followed.

The village will accept written comments until March 17.

e-mail: krobinson@buffnews.com

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