Call it the hole in the doughnut, and residents living near a vacant field off McKinley Parkway in Hamburg feel like they’ve been served something they can’t swallow.
About 250 residents living off McKinley, Newton and Boston State roads signed petitions opposing a proposal for patio homes clustered on the 29-acre lot.
The proposal needed a rezoning from residential-agricultural to planned residential development, and residents were sure they had enough signatures to require a super majority of the Town Board to approve the change. Since a super majority is three-quarters of the board, it would need a unanimous vote by Hamburg’s three-member Town Board.
But after a change in the project, two members of the board decided that the plan needed a simple majority, and it was approved on a 2-1 vote.
“We just never saw it coming,” said Michelle Claus of Kast Place.
The Planning Board voted 4-3 against recommending the proposal.
Developer Glenn Wetzl’s plan evolved from its original 66-lot proposal, with some of them fronting on McKinley, to 45 patio homes clustered on about 12 acres of the property. There will be one access road from Boston State Road, an emergency access on McKinley, and no homes fronting on McKinley, Newton or Boston State roads.
State law requires a super majority vote on a rezoning when the owners of at least 20 percent of the land immediately adjacent to the parcel, or within 100 feet of it, submit a written protest, or petition.
Residents who wanted the property to remain residential-agricultural, which requires a minimum lot size of two acres, knew they had submitted more than enough signatures. The town attorney agreed that nearly 45 percent of the owners of land near the parcel signed the petition.
But at the public hearing, the developer’s attorney explained that Wetzl was offering an additional safeguard to residents: A buffer of 65 feet to 75 feet wide would be located on the perimeter of the parcel, and would not be rezoned. The rezoning request had dropped from 29 acres to 24 acres, and as a result, 17 acres would remain as permanent open space.
By adding that buffer to the project, the number of residents opposed to the project and living within 100 feet of the new boundary of the property to be rezoned dropped below the threshold requiring a super majority. The buffer creates the doughnut, and the hole is where the development will take place.
Now residents are planning to challenge the rezoning in State Supreme Court.
“We feel this is a change, and it’s a big change,” Claus said.
The original proposal requested rezoning of the full 29-acre parcel, and the notice for the public hearing said 29 acres. Town Attorney Walter Rooth III told the Town Board in a letter the “most prudent course of action” would be to require the developer to submit a revised application.
But Supervisor Steven Walters said in the past the town has accepted a developer’s revised proposal without a new application. He also said Wetzl had made a number of changes, such as lowering the number of lots, keeping lots from fronting on the roads and improving drainage.
“While not every issue was totally mitigated by the developer, I think every issue to some degree was mitigated,” he said, adding that he read and re-read every report and letter filed on the rezoning.
Walters also said an attorney with the New York Department of State told the town the practice of keeping an exterior buffer is legal.
He said he also believes strongly in private property rights, and he and Councilwoman Cheryl Potter Juda supported the rezoning. Councilman Michael Quinn voted against it.
“I don’t think we should subvert this whole process. I think the developer should go back to the Planning Board,” he said.
“They ended up winning the first round,” said Michael Welch of Valley View Road.
Residents say the parcel is an important gateway to Hamburg, and the residential-agricultural district provides a good transition from the town to the village.
The developer plans to erect decorative fences at the corners of Boston State and Newton with McKinley for the gateway.