The appeal to the use variance granted for the Sheldon House, located at 7 Falconer St., to allow for office space will be heard by the Appellate Division of the state Supreme Court in Rochester Tuesday, May 16. P-J photo by Dennis Phillips

A court date has been set for a second appeal attempt by Lakeview Avenue residents to prevent the transformation of the Sheldon House into business offices for Lynn Development.

Paul Leone, Lakeview Avenue resident, said the Appellate Division of the state Supreme Court in Rochester will hear the case on Tuesday, May 16.

In May, Leone, along with his wife, Dr. Ann Servoss, and Timothy Mills, who lives on Falconer Street, first appealed the use variance granted by the city Zoning Board of Appeals to state Supreme Court in Mayville. In August 2016, state Supreme Court Judge Frank Sedita III dismissed the appeal opposing the use variance.

In May 2016, the city Zoning Board approved the use variance for the Sheldon House, which is located in a single-family residential zone. The zoning variance was necessary to clear the way for Lynn Development to purchase the Sheldon House, located at 7 Falconer St., from Jamestown Community College.

In January 2016, Jamestown Community College Board of Trustees approved a proposal from Lynn Development to purchase the Sheldon House. Before the $240,000 sale could be finalized, the city Zoning Board had to approve the use variance to allow Lynn Development to renovate the Sheldon House into office space.

Leone said their lawyer, Daryl Brautigam of Fredonia, said the decision will take about two weeks to be made by the Appellate Court.

”So a decision should be made in June,” Leone said. ”I’m on the edge of my seat waiting for this thing to proceed. It has been a long wait. I’m sure it has been a long wait for the Lynn people too.”

In September 2016, the residents opposing the use variance started a GoFundMe account to raise funds for the appeal. Under the name Neighborhood Zoning Preservation, the GoFundMe account has raised $2,100 of a $20,000 goal. However, Leone said they also have received private donations, which has led them to raise the funds necessary to appeal the decision.

”GoFundMe gets a portion (of the donations) so they suggested to also have donations made to a private account so we can get the full benefit of the donation,” Leone said. ”We are paying the lawyer as the legal fees mount as we go along.”

Since the use variance decision made last May, the Lakeview Avenue residents have argued the city Zoning Board didn’t follow the criteria established to issue a use variance. The four criteria points include:

¯ The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

¯ The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood.

¯ The requested use variance, if granted, will not alter the essential character of the neighborhood.

¯ The alleged hardship has not been self-created.

The Lakeview Avenue residents argued that the first criteria should not apply because there was a second purchase offer by John Lampard. Lampard offered $200,000 for the property, which is less than the $240,000 offered by Lynn Development. In May, it was announced during a Jamestown City Council meeting by Cory Duckworth, JCC president, that JCC officials did receive a late offer, which was for $100 more than what Lynn Development offered. Duckworth said the late offers are not being considered while JCC is under contract with Lynn Development. He said, if they aren’t able to sell to Lynn Development, the late offers would then be considered.

During the Zoning Board meeting in May, Stephen Abdella, JCC legal council, said Lampard’s offer came with the contingency of a property review. Because of the contingency, Abdella said JCC officials didn’t consider Lampard’s proposal as an offer to purchase, but a statement of interest. Abdella said Lynn’s proposal to JCC was an ”as is” sale, which meant no property review. The petitioners argue that Lynn’s deal did come with a contingency because a use variance needed to be approved before the sale could be finalized.

The petitioners stated the second criteria point wasn’t followed because the Sheldon House is not unique because it was built as a single-family residence like the rest of the neighborhood.

The petitioners said the third criteria point wasn’t followed by the city Zoning Board because allowing for office space at the Sheldon House does alter the essential character of the neighborhood because it would allow a commercial business to be in a single-family neighborhood.

The petitions also said the fourth criteria point wasn’t followed because JCC officials created the financial hardship from owning the Sheldon House. During the May Zoning Board meeting, Abdella said in recent years the cost to keep the property has become cost prohibitive. He said in the last seven years, JCC has spent $500,000 maintaining the property. The petitioners state that JCC created this hardship when they agreed to take ownership of the facility, which was donated to them in 1977. The petitioners said JCC officials knew the property was permitted for residential use. They added that in 1977, the property was zoned a residential-3 district, which means it was a multiple dwelling residential district.

In August 2016, Jason Spain, Lynn Development president and chief executive officer, said they will wait for all appeals to be heard before starting renovations at the Sheldon House.