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2008-11-24
Lockport, NY. Citizens File Details Of Court Appeal

Citizens in one small community in upstate New York have held up the world's largest retailer for four years, and there is no immediate end in sight. On April 16, 2008, Sprawl-Busters noted that citizens in Lockport, New York fighting to prevent a Wal-Mart supercenter in their backyards had lost their court appeal. The Lockport battle has been going on since 2004. Citizen opposition forced Wal-Mart to withdraw its original plans for a 203,000-s.f., 24-hour supercenter at an old mall site. Wal-Mart presented officials with a reworked proposal, that was more amenable to town officials, but did not garner the support of the Lockport Citizens for Smart Growth. Wal-Mart reduced the supercenter to 185,600 s.f., increased the back buffer to allow a 10-foot wall that would "protect" adjacent residential backyards from 50 to 100 feet, extended the wall northward to "shield" homes on another road, added a 40-foot-wide ''detention pond'' between the back of the store and the protective wall, and added other minor enhancements. State Supreme Court Judge Richard C. Kloch Sr. dismissed the lawsuit, which sought a permanent injunction, filed by Lockport Smart Growth and five individual homeowners. The residents sued the town's zoning and planning board for granting "extreme difficulty" variances for the project. The lawsuit charged that the zoning board "rewrote the zoning code" and exceeded its authority by allowing the variances and waivers. Daniel Spitzer, Smarth Growth's lawyer, said the waivers should have been granted. "We appreciate the judge's review and his comments, but we still believe the underlying statute is illegal," Spitzer told the Lockport Union-Sun & Journal. "Wal-Mart said that their reason for the larger store was to sell more goods, and we respectfully don't believe that justifies or constitutes extreme difficulty. Otherwise, wouldn't any store owner have extreme difficulty?" Smart Growth had the option of appealing the decision, if they could raise the funds to continue. As of last April's court ruling, Wal-Mart had not exercised its option to purchase the mall property from General Growth Properties. The existing mall stores will all be demolished, with the exception of a Bon Ton department store, which will remain. In June, 2008, Smart Growth filed the papers needed to preserve its right to challenge the court's ruling. Last Friday, seven months after our last report, the Lockport Union-Sun & Journal reported that Lockport Smart Growth had filed a legal appeal in their continuing court battle. Smart Growth attorney Dan Spitzer filed the appeal on November 21st with the 4th Department Appellate Division in Rochester, seeking reversal of State Supreme Court Justice Richard Kloch's April decision affirming town approvals for the supercenter. Smart Growth had until November 21st to lay out the details of its argument or forfeit its right to appeal. The citizen's appeal reiterates their charges against the project presented in their first court case. It is up to the Town of Lockport and Wal-Mart to respond to the appeal, and then a court date will be set. During this pendancy, no work will be done on the Lockport site. A Wal-Mart spokesman told the newspaper that the retailer will not begin any demolition work at the mall until the legal issues are resolved.



What you can do: Wal-Mart first brought its plans for a supercenter to Lockport officials in 2004. The company pulled its plans a few months later, then resubmitted them, only to pull them back a second time. The company returned with a slightly smaller store in 2007. Throughout this entire process, the neighbors have resisted each proposal -- which were essentially minor variations on the same big box theme. The Lockport ZBA gave Wal-Mart 14 area variances to allow the corporation to build at the Lockport Mall. The "extreme difficulty" that Wal-Mart encountered with the town's zoning code were neither extreme, nor difficult. There is a requirement, for example, on the overlay district that 25% of a storefront be windows. But Wal-Mart says it can't have more than 17% windows because of the way the interior of the store is arranged. Another overlay requirement is for one curb cut, but because of the huge scale of Wal-Mart, town officials think two curb cuts are needed to prevent traffic bottlenecks. This site is not appropriate for a large store because of the nearby homes abutting the property. If the Wal-Mart had been proposed at the same size as the existing Bon Ton, neighborhood opposition probably would have been scaled down as well. "The ZBA effectively rewrote the zoning code by treating the project site as one property and by rendering decisions based on street lines instead of lot lines," the original lawsuit said. "The variances granted are so substantial in scope that the ZBA effectively rewrote the zoning code." The lawsuit claimed that the zoning board violated state law by failing to consider the impacts of supercenter traffic. The New York State Environmental Quality Review Act (SEQRA) requires the town to consider potential environmental impacts of a project and the ZBA allowed Wal-Mart to delay some traffic study until after construction -- and promise to perform unspecified remediation if necessary. The law says effects have to be understood and remedial measures prescribed before construction. The plaintiffs argue that the two properties should have been treated separately, which would have required 33 more variances. Readers are urged to email the Lockport Town Board at: http://www.elockport.com/town_board_crocker.html. Tell them, "I am thrilled that your court battle over Wal-Mart continues. Eventually the citizens of Lockport will be the winners. If this superstore is built, the Wal-Mart discount store down the road on South Transit will shut down. Most of the "new" sales at Wal-Mart will come from sales at the "old" Wal-Mart store. You may also have to contend with at least one grocery store closing and leaving a second empty building. This is fine if Lockport wants to go into the real estate business. But the homeowners who live behind this huge store will forever see the value of their homes diminished, and their opportunities to sell out at a decent price may be gone for good. Zoning decisions are never a win/lose proposition when done compatibly. But in this case, Wal-Mart wins, and the neighborhood loses. The Town Board is the biggest loser, because many residents will see this case as just one more example of elected officials selling out homeowners for a large, international corporation. For now, Wal-Mart's bulldozers have been silenced. Let's hope they stay that way."










 
 
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