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Judge to decide whether officials acted in 'bad faith'

Amherst lawmakers were "acting in bad faith" when they rezoned land off Millersport Highway to stop the development of a new Wal-Mart Supercenter last year, an attorney for landowner Anthony Cimato said Thursday in State Supreme Court.

Justice Timothy J. Drury complimented Cimato's lawyer, Jeffrey D. Palumbo, saying he "made a good case" that the intent behind the rezoning was to bar the Wal-Mart project. But under a prior court decision, "the intent of the Town Board was irrelevant," Drury said.

Drury said he would consider the arguments and rule later in the case.

At issue in the hearing was Amherst's decision to "downzone" about 67 acres at 4300 Millersport Highway, near Smith Road. Town Board members voted unanimously in January 2006 to change the previous commercial zoning to a new zoning, "traditional neighborhood development," which limited the amount of commercial development and included provisions for some new housing.

The vote followed a 2 1/2 -hour meeting attended by hundreds of area residents, some of whom made impassioned pleas to stop the Wal-Mart development.

Palumbo received the loudest outcry as he warned town officials: "The town is exposing itself to a lawsuit -- and we will win."

The Cimato rezoning was one of more than a dozen approved in the area, which is prone to flooding and includes numerous homes that are sinking and cracking because of soil conditions.

"The town was responding to a minority of the public and was not engaging in a comprehensive plan whatsoever," Palumbo told the court.

Amherst Deputy Town Attorney Alan P. McCracken disagreed. He said that two years before the rezonings, the town's new comprehensive plan, which was drawn up by professional planners, called for maintaining the rural nature of the Millersport Highway area.

The town was required to hold a public hearing, which became "raucous" because of the speakers, not anything the town did, McCracken said. And the town's zoning code must be based on what the master plan calls for, he said.

During Thursday's court hearing, Drury also questioned attorneys about the new zoning for the site, which under some interpretations, could allow for greater development than the previous zoning, he said.

However, McCracken said the new traditional neighborhood development zoning would still prevent the building of a superstore, which would concentrate on using just 21 acres of the 67-acre site.

e-mail: tdolan@buffnews.com

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