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Hamburg residents challenge doughnut hole zoning, and win

They squished the doughnut hole, at least for now.

Residents opposed to a proposed 45-lot patio home subdivision in Hamburg challenged a rezoning in State Supreme Court - and won. The judge voided the rezoning, putting the subdivision on hold. But the developer plans to appeal the decision.

"We were surprised, we couldn't believe it," said Michele Claus of Kast Place, one of those who filed the legal action against the Town of Hamburg, developer Glenn Wetzl and property owner Green Acres Inc. "We had waited four months for this decision."

Neighbors went to court after the Town Board rezoned 24 acres at McKinley Parkway, Boston State (Route 391) and Newton roads from residential-agricultural to planned residential development to allow Wetzl to build 45 patio homes. They thought they had filed enough petitions with the town to require a supermajority approval by the Town Board, in this case, all three members.

But on the night of the public hearing, they discovered 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 - the hole of the "doughnut."

And that meant the state law requiring a supermajority vote by the Town Board did not apply  because those neighbors objecting did not live close enough to the property in question. The rezoning was approved by a 2-1 vote.

Developers have used doughnut hole designs in proposed developments as a tactic to frustrate neighbors in a number of projects throughout the Buffalo area, particularly in fast-growing Amherst.  The doughnut hole maneuver was first used years ago by the late Amherst real estate attorney Anthony J. Renaldo, who was an expert in land use, especially 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

Supreme Court Justice Catherine Nugent Panepinto  ruled that the notice of the public hearing listed 29 acres of vacant land, not 24 acres. Town Attorney Walter Rooth III had recommended the board require Wetzl submit a revised application to the Planning Board and restart the process.

"This court hereby finds that Hamburg should have listened to its counsel and restarted the process so as not to mislead the public," she wrote in her ruling.

But Wetzl was planning to rezone just the 24 acres for nearly a year before the board action, and the Planning Board reviewed the smaller acreage many times, according to his attorney, Sean Hopkins. Hopkins said Wetzl plans to appeal because he believes the decision was in keeping with the town's comprehensive plan.

The rezoning for 45 lots clustered on the site, "with 18.83 acres of permanent open space was the result of a nearly two year review process which involved numerous modifications that reduced the project density and increased the amount of permanent open spaces based on input received from all interested parties including the public," Hopkins said in a statement.

"We understand there will be development, construction there. We understand that," Claus said. "It’s the kind of construction we are against. The town's Comprehensive Plan states that would be residential- agricultural."

Supervisor Steven Walters, who voted in favor of the rezoning, along with former board member Cheryl Potter Juda, said the board has not talked about the ruling, but he does not think the town will appeal it.

"The residents are committed on the issue and they will continue to fight the issue and fight for the integrity of their neighborhood," said Richard Lippes, the attorney for the residents.

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