There is one unhappy developer in Amherst, New York this week. The Amherst Board of Supervisors came back from the Labor Day break and voted to rezone 30 parcels of land, including one that was proposed for a Wal-Mart supercenter. The vote on the superstore parcel was 6-1 to rezone. After the vote, the attorney for the Cimato Brothers Development, who own the land on Millersport Highway, told the Amherst Record that there would be legal action in the future. “On behalf of the property owners there will be a lawsuit. It’s an illegal rezoning. It’s solely to prevent Wal-Mart.” Clearly the landowners knew this was coming, and had their lawyer wound up to comment to the press, but town officials in any community have the right to rezone land to protect its appropriate use. The newspaper said local officials rezoned the land because of environmental impact concerns, including the presence of flood plains and wetlands in north Amherst. “The rezoning is a tactical requirement — it is a design need,” Amherst Supervisor Satish Mohan told the newspaper. “You cannot put people of the future in an area that will not support them. There is no drainage.” Wal-Mart’s attorney Sean Hopkins would not confirm yet whether the retailer would join in the lawsuit. In a related development, Amherst Councilman Bill Kindel wants the town to issue a $7 million bond to prevent development on large tracts of northern Amherst, setting aside the area for farm land, open space and flood control. One of the bonds would reserve a plot of land near Millersport Highway developers wanted to use for a Wal-Mart. “This is not to target Wal-Mart,” Kindel said. “They happen to be in an important area for flood control.” The bonds would mean that the owners of the plots involved would be prohibited from most forms of development. Kindel’s proposal will be on the November ballot for residents to decide. “All we’re talking about here is going to the voters,” Kindel to The Record. “The town board (would be) making it available for them to chose.”
The landowner and/or Wal-Mart are going to have a hard time getting a court to superimpose its judgment over that of local officials interpreting their zoning powers. In this case, the town board cited important environmental concerns, including controlled development in a floodplain, and protected land from overdevelopment. A huge superstore was too-intense of a use for the parcel in question. Although the net effect was to stop a Wal-Mart, the rezoning also stopped an entire class of development: large scale commercial. Wal-Mart and its developers have succeeded countless times in getting local officials to rezone land to meet their purposes. In this case, town officials went the other way, but Wal-Mart, which lives by rezonings, can’t complain when they die by rezoning. The threat of a lawsuit in this case is just that — a threat designed to intimidate local officials. The town will no doubt prevail, and a lawsuit is certain to hold off any development for as long as a year, or longer. If there were no procedural errors in the rezoning process, and the town clearly stated its environmental reasons for the rezonings, then the plaintiffs are going to have a super problem trying to get their superstore built. Citizens in Amherst rallied against the Wal-Mart plan, which was inappropriately sized, and inappropriately located.
