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2009-06-08
Lockport, NY. Court Decision Unlocks Wal-Mart After 5 Year Delay

Citizens in one small community in upstate New York have held up the world's largest retailer for five years, and probably cost Wal-Mart as much as $500 million in lost sales at that location. This week, Wal-Mart finally outlasted and outspent its opponents -- but neighbors delayed the corporation for half a decade. On April 16, 2008, Sprawl-Busters noted that citizens in Lockport, New York who were 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 rear buffer wall from 50 to 100 fee from abutters, 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 citizen's 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, one of the largest mall developers in the nation. 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. On November 24, 2008, Sprawl-Busters reported that Lockport Smart Growth had filed a legal appeal in their continuing court battle. Smart Growth attorney Dan Spitzer filed the appeal 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. The citizen's appeal reiterates their charges against the project presented in their first court case. During the pendancy of this appeal, no work was done on the Lockport site. A Wal-Mart spokesman told the newspaper that the retailer would not begin any demolition work at the mall until the legal issues were resolved. This week, six and a half months after the appeal was filed, the Appellate Division of state Supreme Court on June 5th released its ruling in the Lockport Smart Growth case. The five-judge panel unanimously rejected Smart Growth's petition. Spitzer, Smart Growth's attorney, argued that the "extreme difficulty" waivers granted by the planning board were improper, and should have been zoning variances instead. "They didn't win on any of their allegations. The (court) made short shrift of every single point Smart Growth argued," Town Attorney Daniel E. Seaman told the Union-Sun & Journal. "Clearly they looked at all of the issues we raised," Spitzer said, "but there's no elaboration by the panel. They ruled (the town met) legal standards but they didn't say why. The question is not answered: If a zoning variance and an extreme difficulty waiver (give) the same relief, how can there be different standards for each?" One resident who fought the store told the newspaper, "You get what justice you can afford. Theoretically, I'm surprised (the court) didn't agree with any of our arguments, but being 65 years old and seeing how justice really works, I'm not. ... Not even one dissent? Incredible."

What you can do: The mall's owner, General Growth Properties, recently filed for bankruptcy. It's not clear what impact, if any, the landowner's financial problems will have on this long-delayed project. 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 waivers 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, in 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 a promise to perform unspecified remediation if necessary. The law says effects have to be understood and remedial measures prescribed before construction. The plaintiffs argued 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, "The taxpayers in your town who took you to court tried to prevent you from making the biggest mistake in the history of Lockport. They effectively locked Wal-Mart out for five long years. 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 don't have to result in 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 corporation. Wal-Mart's bulldozers have been silenced for five years. That in and of itself is a great victory, considering the hostility the neighbors faced from both Wal-Mart and the Lockport town board."










 
 
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