Everyone calls it a doughnut hole. Yet it is anything but sweet for residents fighting a patio home development.
Neighbors went into a Hamburg Town Board meeting in December, assuming they had filed enough petitions that would require the board’s unanimous vote to rezone a vacant parcel for 45 patio homes at McKinley Parkway and Newton Road.
But developer Glenn Wetzl’s proposal had changed. Instead of asking for a rezoning of the entire 29-acre lot, Wetzl was looking for the new classification for just the 24 acres in the center.
And that meant the state law requiring a supermajority vote by the Town Board did not apply. The reason: those objecting no longer were close enough to the property in question.
The rezoning was approved by a 2-1 vote, and now neighbors have challenged that action in State Supreme Court.
“We are absolutely devastated,” said Michelle Claus of Kast Place, one of those who filed the legal action. “We just felt it was very underhanded. They should have been clear to us what the ramifications were to only rezoning part of it.”
But keeping some property out of the rezoning goes back to December 2014, according to a memo written by the town’s planning consultant.
And Planning Board minutes from Jan. 7, 2015, explain revisions to the proposal, including a 75-foot permanent open-space buffer along McKinley and a 65-foot buffer along Newton that would remain residential-agricultural.
There was disagreement in the town over whether the supermajority petitions were valid or not. In a memo to the Town Board, Town Attorney Walter L. Rooth III suggested the “most prudent” course would be for Wetzl to submit a revised application and restart the process.
The doughnut hole maneuver was used years ago by an Amherst real estate attorney who was an expert in land use, particularly if surrounding residents wanted to block a development by petitioning for a supermajority vote.
His plan was to create a buffer around the perimeter of the property where the zoning would not change. The developer could then use the center of the property – the hole in the doughnut – for his plans, despite the wishes of surrounding neighbors.
Wetzl’s introduction of the buffers in 2014 appeared to be in response to residents’ opposition to driveways on McKinley and Newton, and to ensure them that section would not be developed, according to meeting minutes.
“I think the process worked exactly as it should. The plan was modified again and again and again,” said Sean Hopkins, the attorney for Wetzl.
He said the development will provide for excess water capacity on site to help some of the neighbors’ flooding issues.
“We did our best. It does not mean everyone’s happy,” Hopkins said.
Neighbors organized shortly after the proposal to rezone 29 acres from residential-agricultural to planned residential was made in 2014. Residents went to Planning Board meetings and Town Board meetings, and Claus and her husband, Joe, went door to door after every planning meeting, updating neighbors. A group formed and held regular meetings.
And when the parcel was rezoned, they vowed to fight it. A core group put up money for a lawyer, and today neighbors have a Facebook page, “Smart Growth in Town of Hamburg,” and a GoFundMe page of the same name to help raise money.
The neighbors are asking a State Supreme Court judge to void the rezoning until the town complies with state law.
Neighbors contend the town violated state law, failed to provide adequate notice to the public, and the rezoning is inconsistent with the town’s comprehensive plan that talks of preserving scenic views and vistas in that area of town.
“I really feel it’s because they needed to find a way to silence us from our voice being heard and being used for this decision,” Claus said.
The rezoning allows Wetzl to cluster the patio homes together, while leaving 17 acres undeveloped.
The 1,600-square-foot to 2,200-square-foot patio homes are better for the area than some of the alternatives, Wetzl’s attorney said at the public hearing.
“Accept the premise that this land will be developed,” he said.
At one time, a different developer proposed 150 apartments, a large senior housing building and a large church for the site.