Hamburg Town Board members took steps Monday night for a do-over.
The board scheduled a public hearing on a change in the zoning code – the identical amendment that it approved in February to allow an Orchard Park company to move to the former Walmart building on McKinley Parkway.
But since then, the town received notice from Buffalo Sabres player Patrick Kaleta and several family members that they intend to sue the town, and a Hamburg woman challenged the town’s action in State Supreme Court.
The Kaleta group and his Helping Individuals to Smile Foundation had plans to convert the former big-box store to into National Hockey League-size rinks, a field house and pro shop. But Walmart sold the building to Worldwide Protective Products of Orchard Park for $2 million.
The 130,000-square-foot building is zoned C-2, and would have allowed the ice rinks. The change in the code will allow light manufacturing to take place in a C-2 zone, since it was not mentioned in the code. Worldwide Protective Products puts finishing touches on industrial protective gloves.
According to court papers, the town did not issue the required 10-day notice that the board would vote on the change in the zoning ordinance.
The town used improper procedures to amend the code and helped one business over another, according to Terrence M. Connors and Patrick D. McNally, attorneys for the Kaleta group. Walters and Worldwide deny the charges.
Councilman Joseph A. Collins blamed the town attorney during the board work session and said the town did not comply with requirements.
“You should have caught it, really, as the municipal attorney,” Collins said. “We wouldn’t be looking at this if we weren’t going to lose in court.”
“It did comply with requirements, we do late resolutions all the time,” Supervisor Steven J. Walters said.
Walters said the town inadvertently forgot to send the proposed change to Erie County for comment. There is case law that says this is not a “fatal flaw,” he said, but the town’s attorneys suggested redoing the public hearing and repassing the ordinance.
Town Attorney Kenneth J. Farrell said the challenge in State Supreme Court, known as an Article 78 proceeding, is not unusual.
“People make challenges to all kinds of things,” he said. “When they make challenges, we take care of those things. There was the mere allegation. People file papers all the time.”
Collins said he did not have time to study the change in February, and he complained that it does not have enforcement mechanism. Councilwoman Amy J. Ziegler said Collins voted for the original amendment.
Farrell called the objection a red herring. “There are enforcement mechanisms throughout the entire code,” he said, adding that municipalities amend codes regularly. “That doesn’t mean that there is a new enforcement mechanism put in every single amendment. That’s absurd.”
The board, with Collins abstaining, scheduled a new public hearing for 7 p.m. July 15.