This time, the doughnut hole was sweet for the developer, but not so much for the neighbors.
Several Hamburg residents fighting a proposed 45-lot patio home subdivision were dealt a blow when an appeals court overturned a state Supreme Court ruling in their favor.
“Of course we’re disappointed,” said Michelle Claus.
It was good news for developer Glenn Wetzl, said his attorney, Sean Hopkins.
"We'll now move forward with the project," Hopkins said, adding that construction could start in several months.
The plan has been changed since 60 homes were proposed, Hopkins said. He added that 17 acres will remain open space.
Neighbors collected 300 signatures on a petition against the development, which is bordered by Newton Road, McKinley Parkway and Boston State Road (Route 391). The project needed a rezoning from rural agriculture to a planned residential development district, and the petitions asked for a supermajority vote by the Town Board on the rezoning.
That's where the doughnut hole came in.
Instead of asking for a rezoning of the entire 29-acre lot, Wetzl asked 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 because those objecting no longer were close enough to the property in question to force a supermajority. The property was rezoned in December 2015.
The doughnut hole maneuver was first used years ago by an Amherst real estate attorney who was an expert in land use. 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 who would want to block it by a supermajority vote.
Claus and her husband, Joe, and Thomas and Jane Johnson had sued the Town of Hamburg and Wetzl, and Supreme Court Justice Catherine Nugent Panepinto ruled in their favor in 2017. Panepinto said the town should have restarted the rezoning process before voting because the notice of the public hearing listed 29 acres of vacant land, not 24 acres.
But the Appellate Division overruled her, concluding that the notice given for the public hearing was sufficient.
"We don’t feel that this appeals court upheld the laws of the Town of Hamburg," Michelle Claus said. "For six and a half years we have been trying to keep the zoning at that parcel what it was. We felt we were following the correct steps to have the town listen to us."
She said that while she believes it was spot zoning, she harbors no resentment toward people who may move into the new homes.
"It was something we had to do. We felt we needed to do. We felt very strongly," she said.