Two boards in Amherst are entangled in a family feud over who has the power to manage growth in the region's largest suburb.
Twice this year, after the Town Board stopped a proposed development dead in its tracks, the Zoning Board of Appeals later revived the same project and allowed it to proceed.
Town Board members are so frustrated that they've hired a law firm to bring legal action against the Zoning Board.
One project is a medical office building on Maple Road and the second is an apartment complex on North French Road. The Town Board is preparing to sue only over the apartment complex because the town attorney said time has run out to sue over the medical office building.
The highly unusual case exposes tensions over how Amherst should control development in the town's valuable open space, particularly when a project is eyed for a site near homes or where rezoning is needed.
Town Board members and residents who oppose the two projects say the developers and their attorneys took a second bite at the apple from the Zoning Board after the Town Board rejected their rezoning request.
"They had their opportunity before the Town Board. We had public hearings, and we give serious consideration to all of these decisions," Amherst Supervisor Barry A. Weinstein said. "And we don't think it's appropriate for them to go to another agency that has different criteria, and doesn't study it as well, and basically go around the Town Board."
Backers of the projects and the Zoning Board's position say the Zoning Board acted within its authority under state law to grant use variances.
"It demonstrates a fundamental misunderstanding of the law," said Jeffery D. Palumbo, the attorney for the developer whose project is at the heart of the suit.
Amherst isn't alone in its board-on-board lawsuit. The Town of Lockport has filed suit against its own Zoning Board of Appeals over a use variance.
"I think what they're trying to do is prevent this from happening again," said John Radens, the chairman of the Amherst Zoning Board.
Town Board sees 'trend'
The intra-town standoff centers on projects where a rezoning is required. Zoning controls what type of development can take place on a property.
In some cases the developer must request a zoning change for the project to proceed, and that's when knock-down, drag-out fights can ensue.
What happened in the two cases, however, is the Town Board rejected the rezoning requests, but the developers then went to the Zoning Board to get a use variance. That allows the development to take place on the property without changing the zoning.
The use variance request must pass four tests: the owner can't get a reasonable return for the property without it; the owner faces a hardship that doesn't apply to other nearby properties; the owner didn't create this hardship; and granting the variance won't alter the neighborhood's character.
Amherst officials say disagreements between the town and zoning boards were more common in the 1960s and '70s, but became less frequent in recent decades.
"If it happens once every 10 or 15 years, it's no big deal, but when you have two in the same time frame it's becoming a trend," Weinstein said.
The first of the two is a 14,200-square-foot medical office building that Northtowns Cardiology wants to build on vacant land at 190 Maple Road, just east of the Millersport Highway interchange. The Town Board in January rejected the request for a change in zoning, from residential to office building.
The Zoning Board, however, in April approved the use variance.
Judith Ferraro, a member of Amherst coalitions that oppose development at the former Westwood Country Club and Buffalo Shooting Club properties, said the project did not meet the high standard for a use variance.
Sean Hopkins, the attorney representing the 190 Maple developer, said the Zoning Board acted in a way "consistent with the tests and criteria" that govern all of its decisions.
Developer argued hardship
The second project followed a similar path. The Town Board rejected the requested rezoning, from suburban agricultural to multifamily residential, for the Green Organization's plan to construct two buildings, with 24 apartment units total, at 4400 North French Road, just west of Transit Road. One concern for the Town Board was its location within the town's floodplain.
That's when the Green Organization and Palumbo turned to the Zoning Board. The board spent 3½ hours over two meetings in May and June listening to a debate of the project's merits, reviewing the request and voting on several variances.
The Zoning Board ultimately agreed the property owner had demonstrated it would face a hardship without the use variance and that it could not otherwise enjoy a reasonable return on the sale of the land.
Town Board members and some neighbors were outraged.
Town Attorney Stanley Sliwa had advised board members after the 190 Maple case that they couldn't sue the Zoning Board, but he said he later found a case that showed the Town Board automatically has standing to sue. Sliwa's office represents both boards, so he had to recuse himself.
The Town Board on June 19 voted to hire the Hancock Estabrook law firm to prepare the suit, which likely will come by July 14. The Zoning Board is in the process of hiring its own law firm. Amherst taxpayers will foot the bill for both firms.
"I think it's unfortunate. Just, in a word, it's unfortunate," said Radens, the only Zoning Board member who opposed the use variances.
Planned suit called 'frivolous'
To town officials and residents, this is a case of astute attorneys prodding Zoning Board members to overrule the elected Town Board.
"I think the developers want the projects to go forward and, therefore, they have very able attorneys. And the attorneys, to their credit, use their creativity and say, hey, we can always use the"
variance, Sliwa said.
Veteran Zoning Board member David Pollack said the board has the authority to issue a use variance, provided the request meets the four-part test. "We did what we are mandated to do. We followed the tests and made the vote," he said.
Palumbo said it's not a case of the Zoning Board overturning a decision by the Town Board because they apply different standards.
The Town Board, he said, "is doing a disservice to the Amherst residents by spending money on two law firms for what I deem to be a frivolous lawsuit."
Northtowns Cardiology avoided legal action because it is too late to sue over that use variance, according to Sliwa. That's frustrating to Ferraro and other residents.
"The ZBA botched both of these," Ferraro said. "They should be going after the ZBA for both of these properties, not just the one."
Lockport sues over duplex
The use variance that led to the lawsuit in the Town of Lockport didn't start with the town turning down a rezoning request, said Brian Seaman, the town attorney, who similarly recused himself.
In that case, Larissa McKenna wants to build a duplex on Tonawanda Creek Road on property zoned for single-family homes. She applied for permission from the town Zoning Board of Appeals, and the board on March 28 granted the use variance.
"It was run of the mill, to be honest," Seaman said of the application.
However, the Lockport Town Board in its sharply worded April 27 lawsuit against McKenna and the Zoning Board of Appeals argued the board acted "arbitrarily and capriciously." The Zoning Board's attorney has asked a judge to dismiss the lawsuit.
Back in Amherst, the Town Board is taking a further step to assert its control over the Zoning Board.
At the Town Board's direction, the Town Attorney's Office is drafting a local law that would limit a developer's ability to turn to the Zoning Board in cases where the Town Board has rejected a zoning change. The law might impose a waiting period of a year or more, for example, before the developer could request a use variance, Sliwa said.
Radens, the Zoning Board chairman, is skeptical of this effort.
"They can write the law," Radens said. "I don't know if it will stand up to an appeal."