Neighbors fighting Benderson Development's University Town Centre project on Maple Road lost another round in court Thursday -- and they might not get another court hearing.
The Appellate Division of State Supreme Court in Rochester upheld an earlier ruling allowing the proposed $44 million, mixed-use development.
Only Justice Eugene M. Fahey dissented in the 4-1 vote. That means the Fairways Group, the organized opponents who live in the neighborhood just south of the former Buffalo Shooting Club property, is not automatically granted a further appeal.
In suing the Town of Amherst and Benderson Development, Fairways Group members argued that the project violated the town's comprehensive plan.
But appellate court justices said the plan was intended to be flexible and meant to provide a general guide to future development. The plan, they said, sought to encourage commercial development near the University at Buffalo's North Campus.
"Although the Benderson property is not adjacent to the university's campus loop or accessible by Millersport Highway, the Benderson property is still in proximity to the university and is close to the plan's proposed location of a mixed-used center," said the appellate justices who voted to uphold the lower court's ruling.
Amherst Town Attorney E. Thomas Jones said he recognizes the challenge in basing Amherst's land-use decisions on the town's comprehensive plan.
"It just points out that this is a difficult statute to work with," Jones said. "People generally focus in on one page of a 300-page document, and that's the map with the land use colors on it, and that's not the entire plan."
Indeed, Fahey's dissenting opinion points out that the map characterizes the intended use of the gun club property as "green space," which is at odds with the largely retail-driven project proposed by Benderson.
"The rezoning is in clear conflict with the plan inasmuch as the project will result in the encroachment of commercial development into 'green' residential areas of Maple Road," Fahey wrote in his dissenting opinion.
While Benderson characterizes the project as a mixed-used development, "the true character of the project is retail-oriented inasmuch as the plans call for the development of an extraordinary amount of retail space designed to attract an equally extraordinary amount of traffic to what is basically a green and residential area," Fahey wrote.
The court's majority, however, agreed that the overall plan provides some supporting information, indicating that Benderson's proposed development is consistent with some parts of the town's comprehensive plan.
"Thus, because petitioners failed 'to establish a clear conflict' with the overall plan, the Town Board's zoning determination must be upheld," the decision stated.
The proposed Benderson project calls for one- to three-story condominiums and townhouses and a five-story hotel. One- and two-story buildings with restaurant and retail tenants would be built with brick and wood clapboard reminiscent of late 19th and early 20th century structures typical of Main Street towns in Western New York.
A 4.5-acre parklike buffer would front Maple Road.
That buffer also stirred controversy among neighbors.
Enough adjoining property owners -- with properties within 100 feet of the Benderson parcel -- signed a protest petition against the rezoning. That should have kicked in a state law that requires a supermajority vote, meaning six of the seven Town Board members would have to agree before the tract could be rezoned from a community facility designation to general business. Four Town Board members, a simple majority, voted to rezone the parcel.
But the Appellate Court affirmed State Supreme Court Justice Rose H. Sconiers' August 2009 ruling that Benderson's 100-foot deep, parklike conservation area fronting Maple Road, which was not rezoned, meant no supermajority vote was required.
News Staff Reporter Sandra Tan contributed to this report.