The family that wants to sell 57 acres in East Amherst to make way for an 80-home subdivision doesn't want to wait until March for the Town Board to act on its request to rezone the property.
Instead, the family has asked the town Zoning Board of Appeals for a ruling that would pave the way for the $35 million project – and take its fate out of the hands of the Town Board.
Residents in the subdivisions that line the largely vacant Jacobs family property say they're frustrated by the move. And, town officials question seeking a use variance before the Town Board makes a decision.
"They're trying to circumvent the community," said Larry Rera, an opponent whose Gray Birch Court home backs up to the Jacobs family property.
Two similar cases earlier this year prompted a rare lawsuit by the Town Board against the Zoning Board. The Zoning Board, however, won the first round in that legal fight.
The lawyer for the Jacobs family said the family is within its rights to seek the use variance.
"We filed this because we believe we have two routes, two avenues available to us," said attorney Jeffery D. Palumbo.
The developer, Natale Builders, wants to build up to 80 single-family and patio homes on 57 acres between New Road and Millersport Highway, owned for nearly 100 years by the Jacobs family and now under the control of the Richard Jacobs Family Trust.
The Planning Board in April recommended rezoning 49 acres of the property at 284 New Road from suburban agricultural to residential, over the objections of neighbors who raised concerns about the project’s effects on wetlands, drainage, traffic, pedestrian safety and wildlife on the property.
A public hearing on the rezoning request is set for March. A new all-Democrat Town Board takes over in January.
Palumbo probably realizes his likelihood of success is higher with the Zoning Board, said Rera, an organizer of the New Road Family Safety Association.
"They certainly know they don't have a real good chance with the new Town Board," he said.
Palumbo said he's not worried about his chances with the Town Board, but he agreed he's doubling his odds of success.
The application is related to two cases this year that prompted the unusual, board-on-board lawsuit, although in this case Palumbo is making the first strike.
"Now they're going around it in a similar manner, even before the Town Board has made a decision," said Amherst Supervisor Barry A. Weinstein.
In one, the Town Board rejected the rezoning of 4400 North French Road for an apartment complex, but the Zoning Board granted several variances. The Town Board sued the Zoning Board, which won a decision in State Supreme Court last month. Town Attorney Stanley J. Sliwa said the Town Board is weighing an appeal.
Whether the Zoning Board grants a use variance or the Town Board grants a rezoning request, the effect is the same: The developer would be able to build the subdivision as proposed, said Douglas G. Gesel, a senior code enforcement officer with the town.
The developer could build houses on the property now, with its suburban agricultural zoning, just not as many as with a use variance or zoning change to residential, Gesel said.
The application from the Jacobs family for the use variance states it can't receive the highest and best return for the property under the suburban agricultural zoning. It contains an extensive analysis of the Jacobs' spending on the property over the years, and the return on its investment.
To obtain the use variance, the Jacobs family must demonstrate the current zoning presents an unnecessary hardship.
"My question to them will be, what has been denied? Nothing has been denied," said John Radens, the chair of the Zoning Board.
Palumbo filed the application on Nov. 28, in time to get on the Dec. 19 Zoning Board of Appeals meeting, and filed a revised application on Monday.
But Building Commissioner Brian P. Andrzejewski on Tuesday said because the application was incomplete initially, and the revised application contained new information, he can't accept it for the Dec. 19 meeting. The earliest it will be considered is in January.