The owners of a 57-acre property in East Amherst where a developer wants to build an 80-house subdivision are threatening legal action against the town over its refusal to let the Amherst Zoning Board of Appeals review the project.
The Richard Jacobs Family Trust has a contract to sell the former farm at 284 New Road to Natale Builders. The project, which is opposed by a core group of neighbors, requires a zoning change to proceed, and the Town Board hasn't acted on that request yet.
In the meantime, Jacobs family attorney Jeffery D. Palumbo applied for a ruling from the Zoning Board that would pave the way for the $35 million project and remove any need for the Town Board's approval. But Building Commissioner Brian P. Andrzejewski in December, and again this month, declined to allow the variance application on the Zoning Board's meeting agenda.
"The building commissioner, with my input, has held up the application," Town Attorney Stanley J. Sliwa said.
Palumbo said he has asked Andrzejewski for a written explanation.
"They have absolutely no legal authority to keep the use variance off the agenda," said Palumbo, of the Barclay Damon law firm. "They are forcing the applicant to file a lawsuit asking the court to direct them to schedule the hearing."
Natale Builders proposes to build single-family and patio homes on the largely vacant parcel between Millersport Highway and New Road.
The Planning Board in April recommended rezoning 49 acres 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.
Sliwa, at the direction of the former town supervisor, contacted the Jacobs family in December to see if they would instead consider selling the property to the town. The family declined.
The outreach came shortly after the Jacobs family filed a request for a use variance with the town Zoning Board.
Andrzejewski in December deemed the variance application incomplete. Palumbo refiled the application with the additional requested information, but now Andrzejewski has raised further concerns.
First, Sliwa said, the Zoning Board is an appellate body, and the owners of the property haven't had anything rejected yet that they can appeal. The Town Board isn't set to act on the rezoning request until March. There's also no building permit or site plan application on file, just a concept plan, Sliwa said.
Second, Andrzejewski and Sliwa view the variance request as, in effect, asking the Zoning Board to rezone the property, the town attorney said.
"That's solely and exclusively something for the Town Board to resolve, only after input from the Planning Board," Sliwa said.
Palumbo said the Zoning Board has the authority to consider the application. He pointed to a lawsuit the Town Board filed last year against the Zoning Board over an unrelated development, where the Town Board had rejected the rezoning request but the Zoning Board later issued a use variance. The Zoning Board won the opening round in that court case.
"This will be another lawsuit they can’t win," Palumbo said of the Town Board.
John Radens, the chairman of the Zoning Board, said he defers to the judgment of Andrzejewski, the building commissioner.
Larry Rera, a leader of the New Road Family Safety Association that opposes the Natale development, said its members want the Town Board to decide the project's fate.
"The Town Board was voted in by the people," said Rera.