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A lawsuit that challenged the constitutionality of a 1977 amendment to Buffalo's zoning ordinance limiting the size of new commercial buildings in the Elmwood Business District has been dismissed.

State Supreme Court Justice Eugene M. Fahey said he inadvertently failed to address the issue July 1, when he upheld a decision by the Zoning Board of Appeals to deny a variance for the proposed expansion of a Rite Aid drugstore at Elmwood Avenue and Bryant Street.

That decision only covered claims by the developer that the zoning board had not properly considered the variance request, a claim that the judge dismissed.

Richard S. Mayberry, a lawyer for Rite Aid and developer Carl Paladino, had argued that the board was unduly swayed by overwhelming community opposition to the project. Two Buffalo lawmakers also had raised opposition during the Zoning Board hearing.

Mayberry also had charged that the 22-year-old amendment limiting the size of new commercial buildings on Elmwood was overly restrictive. The Rite Aid developers are seeking to expand the 8,960-square-foot store at 424 Elmwood into a 11,300-square-foot facility.

Fahey, however, said state law imposes a six-year statute of limitation on challenges to zoning board amendments.

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