It’s not the zoning, itself, that is so troublesome, but the cheesy way developers and the Town of Hamburg went about proposing and then affirming it. They pulled a fast one on residents.
Fortunately, a state Supreme Court justice saw through the subterfuge and invalidated the change. It may come back, but if it does, it will more likely be in an honest way that preserves the public’s right to be heard.
The issue was a proposed development of patio homes in Hamburg. As first presented, the plan was to rezone a 29-acre lot. Formal public opposition was significant enough to have required a supermajority of the board to approve it. That would have meant all three members of the board.
But opponents were surprised on the night of the hearing to find that the proposal by developer Glenn Wetzl had changed. Instead of seeking to rezone the entire lot, he was now looking to rezone 24 acres in the center – a so-called doughnut hole.
With that sneaky revision, only a simple majority was needed to approve the scheme, since fewer people lived near the property in question. The board voted 2-1 in favor of the rezoning request.
Residents sued and were surprised to find last week that they won. State Supreme Court Justice Catherine Nugent Panepinto invalidated the change because 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 but the board ignored the advice – to its detriment and Wetzl’s, Panepinto wrote in her ruling.
Wetzl may appeal on grounds that he had long planned to rezone just the 24 acres and that the Planning Board had reviewed the smaller acreage many times. He also believes the vote was consistent with the town’s comprehensive plan, according to his lawyer. Opponents disagree, insisting the plan designates the land for “residential-agricultural” zoning.
But the fact remains that the public notice was inconsistent with what actually went on the night of the vote. It was a lie. Residents were sandbagged. Due process – the very reason for the public hearing – was violated. The judge had little choice but to find for plaintiffs whose rights had been so casually disregarded.
None of this goes to the merits of the “doughnut hole” approach to zoning, though it does seem like a maneuver designed to overcome restrictions that have presumably been put in place for a reason. It is also not insignificant that the proposal for patio homes is inconsistent with the zoning in place and what nearby residents therefore have the right to expect – and not to expect – in terms of development.
This is bad business. It needs to start over in a process that actually respects all of the stakeholders, not just the developer or a Town Board majority willing to play games with its constituents.