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Developers looking to build a federally funded senior citizens housing complex in the Town of Lancaster are headed back to court to seek permission to start construction.

Harry N. Konst, head of AHEPA 91 Inc., said Thursday that the development group has filed a motion with State Supreme Court Justice Samuel L. Green of the Appellate Division in Rochester, seeking dismissal of a local homeowners' group's "frivolous" appeal of a ruling favoring the project and the lifting of a stay of construction.

An unexpected twist to an already heated issue, the legal move comes a week after Konst announced that the group had tentatively decided to look for another site for the 50-unit apartment complex, planned for construction with $3.5 million in federal funds on property off North Maple Street, near the upscale subdivision Larkspur Acres.

The complex, planned as subsidized housing for low- to moderate-income senior citizens, is in danger of losing its Department of Housing and Urban Development grant because of more than a year of delays, including the current stay of construction, Konst said. The stay is in place because the town and the Larkspur Acres homeowners' group have an appeal against the project pending in the Appellate Division.

"If the judge dismisses this appeal, we're right back on track," Konst said. "We're asking him to dismiss the appeal or lift the stay. The stay is what's killing us. We want the judge to say the stay is a sham."

The appeal, filed jointly by the homeowners and the town's Zoning Board, asks the court to reverse an August court order requiring the Zoning Board to approve a size variance for the project. The variance enabled AHEPA to proceed with plans to build the complex with apartments of 590 square feet, less than the 640 square feet required by town code.

AHEPA's motion contends that the Town Board acted in "bad faith" toward the developers, leading them to incur $200,000 in costs on plans for the Lancaster site. Konst said that if the project does not go forward, the developers will demand their $10,000 application fee back from the town and may go after even more money.

"If we lose this site, there's a good chance we'll lose the HUD grant altogether. At this point, I say to Lancaster: just give us the $3.5 million, and we'll go elsewhere," Konst said. "And if we lose that grant, we'll be looking to collect that money. They've done us an injustice."

Not a chance, a lawyer for the homeowners' group responded Thursday.

"They've been crying wolf about that (HUD grant) for months," said Arthur Giacalone.

Giacalone said the group thinks that its appeal in Rochester will be strong enough to win the day. The stay on building is fair, he said, because the appeal is pending.

"Our response will be . . . there's no grounds to vacate the stay because our case is meritorious," he said. "If they want to get a building permit and stick a shovel in the ground, they're doing that at their own risk."

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