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Zoning Bulletin August 10, 2015 1 Volume 9 1 Issue 15 <br />Constitutionality of Zoning <br />Action—Town rescinds permit <br />request to federal agency on <br />behalf of landowner <br />Landowner argues rescission of request <br />violated its constitutional rights to due <br />process <br />Citation: Acquest Wehrle, LLC v. Town of Amherst, 129 A.D.3d 1644, <br />2015 WL 3797670 (4th Dep't 2015) <br />NEW YORK (06/19/15)—This case addressed the issue of whether a <br />town board's rescission of a request to the United States Environmental <br />Protection Agency to allow a landowner to tap into a federally -subsidized <br />sewer violated a landowner's constitutional rights to due process. <br />The Background/Facts: In 1983, the United States Environmental <br />Protection Agency (the "EPA") gave the Town of Amherst (the "Town") <br />a grant for more than 50% of the Town's cost to construct a sewer project. <br />As a condition of that grant, the Town agreed to prohibit for 50 years <br />new development located in certain identified wetlands (the "Wetlands") <br />from connecting to the sewers funded in part by the grant unless ap- <br />proved by the EPA. <br />Acquest Wehrle, LLC ("Acquest") owned property (the "Property") <br />located partially in the Wetlands. Sometime in the late 1990s and early <br />2000s, Acquest proposed to develop the Property into an office park. In <br />February 2001, the Town Board passed a resolution authorizing a request <br />for a sewer tap -in waiver from the EPA for the Property. In January 2002, <br />the Town made a request to the EPA for the sewer tap -in waiver for <br />Acquest. In December 2004, the EPA denied the Town's tap -in waiver <br />request for the Property. Acquest then revised its site plan. By May 2005, <br />the EPA had advised Acquest that, based upon the revised site plan, a <br />tap -in waiver would be approved. The EPA advised Acquest that Town <br />approval of the revised site plan would constitute and be evidence of <br />continuing approval and support by the Town of the tap -in waiver previ- <br />ously requested by the Town to the EPA for Acquest's development <br />project. <br />In the meantime, neighborhood activists advocated to the Town Board <br />that Acquest's development project be prohibited in order to protect the <br />Wetlands. On March 20, 2006, without any notice to Acquest, the Town <br />Board passed a resolution rescinding the tap -in waiver request and <br />terminated Acquest's office park project. <br />© 2015 Thomson Reuters 9 <br />