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2008-03-27
Ballston, NY. Court Denies Landowner His Wal-Mart, For The Third Time

Frank and Marie Rossi are now three-time losers. These landowners tried to use the court system to force a Wal-Mart superstore down the throats of their neighbors -- but three times they lost. A little more than a year ago, on March 4, 2007, Sprawl-Busters reported that a New York state Supreme Court Judge had thrown out a lawsuit filed by disgruntled landowners in Ballston, New York. The landowner sued the town when local officials turned down their Wal-Mart supercenter proposal for land along routes 50 and 67. The landowners tried to get the courts to overturn two local laws: the first in February of 2005 set up a six month moratorium on big box stores and large residential developments, and the second law in June of 2006 required a developer proposing a building larger than 90,000 s.f., or longer than 300 linear feet, or any site larger than 8 acres, to file for a Planned Unit Development District (PUDD). One month after the town passed the PUDD ordinance, Wal-Mart filed plans for a 203,091 s.f. superstore on 30 acres. In August of 2006, the Ballston Town Board voted not to pass the project to the Planning Board for review, because the Wal-Mart was inconsistent with the town's comprehensive plan, and not in the public interest. Wal-Mart did not appeal that decision. The landowners claimed shortly after the decision, that there had been a "secret meeting" held by the Town Council on May 15, 2006 to discuss the Wal-Mart supercenter. During the Supreme Court trial, Wal-Mart's lawyer submitted into evidence a copy of a page from Councilwoman Mary Beth Hynes' personal schedule book, which had a meeting marked on that day. Wal-Mart said the page was given to them by an anonymous source. The Judge said such evidence was ``unsubstantiated'' and had no bearing in the ruling. The landowners charged that this "secret meeting" violated the Open Meeting law, but Judge Frank Williams ruled that the "secret meeting" was, in fact, a political caucus, and did not violate state law. The landowners did not appeal that ruling. In October of 2006, the landowners sued again, trying this time to annul the PUDD ordinance, and again challenging the "secret meeting" issue. The towns' motion to dismiss the case was granted by the Supreme Court. The first Judge said the landowners had no basis to sue the town, but that Wal-Mart did have a right to sue. The New York State Supreme Court Appellate Division, Third Judicial Department, this week reiterated that the landowners have no standing to sue the town over the PUDD ordinance, because they are not the aggrieved party. It was Wal-Mart's permit that was denied, and only they could be the aggrieved party. But the Appeals Court did allow the landowners to have standing to challenge the process the town used to enact the PUDD law, and the manner in which it employed the New York State Environmental Quality Review Act statute. The landowners again charged that the town board was using its legislative authority "as a pretext to prevent the construction of a Wal-Mart store within the town." But the Appeals court ruled that the landowners failed to show that the town acted in a manner that was "arbitrary and unreasonable." The court affirmed that the town's PUDD law was "adopted for a legitimate governmental purpose." The town submitted an affidavit from an expert who said the town's planning and environmental review process had been made with "extraordinary care and thoroughness." The court found that the landowners "failed to submit any evidence" that took issue with the town's expert witness, and therefore had not overcome the "strong presumption of validity" attached to the town board's actions. As far as the repeated charge of a "secret meeting," the court said no new evidence had been submitted, so the issue would not be reconsidered.

What you can do: This week's decision ends the third legal proceeding against the town within the past four years that has been brought by the Frank and Marie Rossi family, who own the property. The Rossi's daughter and family spokeswoman, Gina Marozzi, told the Schenectady Daily Gazette that she was unaware of the decision and had no immediate comment. In this case, Wal-Mart folded its tent, and knew that it could not challenge the town board's zoning law. But the landowner could not let millions of dollars slip away, so they sued the taxpayers of Ballston once, twice, and a third time. What they were unable to get by regulation, they tried to get by litigation. They were unable to prove that the PUDD ordinance -- which did not ban big boxes -- was designed just to stop one store -- Wal-Mart. The town of Ballston stood its ground and did not blink. But these landowners forced taxpayers to slog through four years of litigation, and the legal expense of defending their actions. Citizens in Ballston organized early, and kept the pressure on town officials from start to end. This project was so out of scale with Ballston's needs and plans, that the town board refused even to pass it on for a review. Readers are urged to email Town of Ballston Supervisor, Patti Southworth, at tobacct@nycap.rr.com, with the following message: "Congratulations for going toe-to-toe with the Rossi family over the proposed Wal-Mart project. The town was right to stick by its guns, and the courts have now affirmed and reaffirmed your position. This huge superstore was incompatible with your Comprehensive Plan and land use goals. Ballston is to be commended for winning a 4 year fight against the world's largest retailer."










 
 
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