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Amherst may have a case if it wants to stop the proposed apartment project raising neighborhood opposition in northwest Amherst.

Amherst Council Member Daniel J. Ward two weeks ago suggested the Town Board rezone, or "down-zone," the 17 acres off Sunset Court to prevent the controversial Brandon Woods apartment complex -- 21 apartment buildings totaling 168 apartments -- from being built at the site.

The parcel, Ward proposed, could be rezoned from multifamily residential, which allows for the apartment buildings, to residential, which allows for single-family homes.

After researching the issue last week, the town's attorneys agreed the town has the authority to make that change, as long as a substantial amount of the construction hasn't started, Town Attorney Phillip A. Thielman said Monday.

The topic is on the Town Board's agenda for its meeting tonight in the Ellicott Creek Fire Hall on South Ellicott Creek Road, but it's unclear whether lawmakers will consider the matter then.

The idea pleases surrounding residents -- who fear the apartments would cause increased traffic, among other problems -- but the notion raises concerns among other town lawmakers.

The property is zoned appropriately for apartments and plans already are in the pipeline. After an environmental review is completed, the project simply needs site plan approval from the town's Planning Board so construction can begin.

"I'm surprised we are able to somehow interrupt that process," said Council Member Jane S. Woodward.

"I sympathize with residents. I don't like that apartment project either," she added. "But I'm uncomfortable with the land being zoned a certain way for 25 years then all of a sudden when someone wants to build apartments (the Town Board) wants to do something about it. I feel we're violating the property owner's rights."

If the Town Board does decide to down-zone the parcel the land owners could file a protest petition and force a so-called "super-majority" vote, Thielman added.

In other words, six of the seven Town Board members would have to agree to rezone the parcel as opposed to a simple majority of four board members.

And that's exactly what would happen, said Jeffery D. Palumbo, an attorney who is part-owner of the land and plans to sell it to the development group BWD of Amherst to build the apartments.

"It's absurd," Palumbo said Monday. "It's the definition of bad faith for the Town Board to move forward with rezoning a piece of property that's subject to site plan approval."

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