23-04-2025
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Bevilacqua Development sues Amherst over dispute over drive-thru restaurant zoning
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Bevilacqua Development has sued the Town of Amherst in a dispute over whether the developer can build a drive-thru coffee shop on a parcel in Getzville.
Story Highlights Bevilacqua Development wants to build a quick-service coffee shop at the former Nina's Custard in Getzville.
The town's Neighborhood Business District typically does not allow drive-thru windows.
The town told Bevilacqua that the project would require a harder-to-get use variance instead of a typical area variance.
Bevilacqua Development has sued the Town of Amherst in a zoning dispute over whether the developer can build a drive-thru coffee shop on a parcel in Getzville.
Bevilacqua plans to buy 2577 Millersport Highway, formerly home to Nina's Custard, pending town approval of its plans to build a drive-thru restaurant on the site.
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Nina's announced its closure in December after 35 years in business. The owners told Business First at the time that a sale of the building was pending to an unnamed developer.
Bevilacqua in December applied for two area variances that would allow a drive-thru window on the site, which is typically not allowed in the town's Neighborhood Business District. The applications say the drive-thru would be for a "quick-service coffee restaurant," but it does not mention a specific occupant.
The Amherst Zoning Board of Appeals held a public hearing in January where two residents who live near the site opposed the project, according to the minutes from the meeting.
The board did not make a decision right away, and Bevilacqua tweaked some aspects of the site plan in response to feedback, such as moving the drive-thru speaker so it would be about 46 feet away from the property line, instead of the originally proposed 20 feet, according to the petition filed by the developer in Erie County Supreme Court. The town code requires speakers to be at least 100 feet away from the nearest residence.
In March, the town informed the developer that the project would require a use variance instead of a typical area variance, according to the petition. A use variance is significantly more difficult to obtain, requiring the applicant to meet numerous strict criteria before one is granted.
In its petition, Bevilacqua argues that the board was "arbitrary and capricious" in its decision making. It is asking the court to overturn the decision.
A representative for the developer declined to comment.
Town attorney Steven Bengart said the lawsuit is in its early stages.
"We are aware that there is a lawsuit and we are reviewing the record and determining our next steps," he said.
