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2009-06-23
North Tonawanda, NY. Court Sends Wal-Mart Back To Planning Board

A spokesman for the Mayor of North Tonawanda, New York says that this week's court decision to send a Wal-Mart supercenter back to the Planning Board is a victory for opponents. Wal-Mart called the court ruling a 'procedural ambiguity.' For opponents of the proposed Wal-Mart, the court's ruling that forces another delay on Wal-Mart is a good outcome. On April 8, 2008, Sprawl-Busters reported that the Mayor of the city of North Tonawanda was thrilled with the idea of a Wal-Mart supercenter -- before he had even gathered any data on the potential impact of the store on his community. His city has lost about 9% of its population since 1990 -- which should be a clear indicator that expanding retail square footage is a mistake. As of 2006, the city had just under 32,000 people. The city also has 6 Wal-Mart stores within 19 miles, including a Wal-Mart discount store 3 miles away in Amherst, New York, and a supercenter 10 miles away in Clarence, New York. North Tonawanda is located midway between Buffalo and Niagara Falls, and is the second largest community in the County of Niagara. Historically, North Tonawanda was an important regional manufacturing center, but today, the city is focused on waterfront development, entertainment and tourism. Although this community has ample access to cheap Chinese imports, Wal-Mart is still pressuring city officials to let them build a superstore. Only one thing stands in the way: local residents. The retailer's first proposal did not go over well, so the corporation fell back and came up with a "Plan B." In early March, 2008, Wal-Mart's supercenter proposal ran into a Wal of opposition at a public hearing. According to the Tonawanda News, at least 100 residents packed into the Grant Elementary School to protest the superstore. Although the chairman of the city's Planning Commission told the audience that Wal-Mart was not the issue at hand, most people testifying made it clear that Wal-Mart was the problem. Most of the focus has been on the traffic problems that this store will create. Dave Seeger, a lawyer representing North Tonawanda First, the citizen's group opposing Wal-Mart, challenged Wal-Mart's typical assertion in its traffic "study" that a superstore would actually improve traffic in the area. "How does that happen?" Seeger asked the Planning Commission. "Answer: You cheat." To counter North Tonawanda First, Wal-Mart cobbled together a "citizens" group called Lumber City Liaisons for Wal-Mart, which testified in favor of the plan. In April, the Wal-Mart project came before the Planning Commission. The city hired the engineering firm Wendel Duchscherer to advise them on the project. North Tonawanda First prepared an independent traffic study for the city to review. The New York State Department of Transportation has also submitted a letter on the traffic situation, pinpointing the intersection at Erie Avenue and Niagara Falls Boulevard as a major problem area, noting that traffic at the intersection will get worse in coming years. The city's consultant recommended to the Planning Commission that they reject the North Tonawanda First request for a third public hearing on the proposal, arguing that Wal-Mart's Plan B changes were not significant alterations in the plan. So counting cars appears to be the major bone of contention as this unnecessary project continues its local review. On August 12th, Sprawl-Busters reported that city officials were giving the Mayor what he wanted. The Zoning Board of Appeals approved two variances. Now the city will sell an access road to the site, to allow the plan to move forward. City planners, who work for the Mayor, have blessed the site plan, and are waiting for county planners to do the same. The land itself is zoned industrial. Wal-Mart's lawyer was pleased with the resulting variances they had been granted. "After several meetings with the planning commission, we've developed the plan you see here. Your code is probably one of the most stringent I've seen anywhere," Wal-Mart's lawyer said. City ordinances required 1,825 parking spaces, but now that his been reduced to 915 at Wal-Mart's request. The city requires 1 parking space for every 100 square feet of store. The dramatic reduction has been characterized as the lowest number Wal-Mart would accept for the 185,000 square foot store. The Zoning Board also had to approve the environmental impact findings that have already been approved by the city's Planning Commission. Wal-Mart's lawyer called the final reviews "mostly just mechanical." On September 8th, the Planning Commission approved the site plan. Planning Commission Chairman Gary Przewozny said Niagara Count planners had no comments to offer on the plan. The Planning Commission and the Zoning Board both held hearings on September 8th. Both groups had already signed off on the plan, and the ZBA voted to approve two variances needed to accommodate the commission's mitigations. The Tonawanda News referred to the planning meetings as "mainly a formality." The city's Common Council also voted to sell to Wal-Mart a city-owned access road -- following the recommendations of Mayor Larry Soos. Supporters of the plan said the project will increase city tax revenues by $400,000 annually. In May, 2008, North Tonawanda First made it clear they intended to appeal the September 8th decision. The city's lawyer told the newspaper that they expected a lawsuit. "Ordinarily, what I imagine would be litigated would be something procedural," he said. "And usually when something like that is litigated it's called an article 78 and that comes with a four-month statute of limitations." Even before the Planning Commission took its affirmative vote, the Chairman told the media, "I think everybody (on the board) is very happy with the way things have gone. When we go to the meeting... we'll see if there are any negative votes. I wouldn't think so, but you never know." What we do know is that this wired decision was, in fact, appealed by North Tonawanda First in October, 2008. On February 187, 2009, four months after the lawsuit was filed, The Tonawanda News reported that a court hearing on the citizen's lawsuit, scheduled for February 17th, has been postponed until March 11th. The city filed a motion to dismiss the lawsuit. State Supreme Court Justice Ralph A. Boniello III delayed the hearing to allow Attorney Seeger, on behalf of North Tonawanda First, to receive a copy of public records of the Planning Commission review of the case. The Judge said the city should turn over the public records and allow Seeger the time to craft a response. Wal-Mart has compiled six boxes full of records and tapes of the hearing, and wanted to charge the citizens $2,000 for a copy. But the Judge ordered Wal-Mart to give a copy to North Tonawanda First for nothing. That's a low everyday price that Wal-Mart certainly did not want to accept. This week, the State Supreme Court ruled that the case has to be sent back to the city's Planning Commission for review of a storm water pollution control plan. Wal-Mart will have to submit a plan that shows how it will handle stormwater runoff. The Planning Commission also has to approve a final site plan for the Wal-Mart, according to the court ruling. The Planning Commission may have to wait a couple of months before taking up the new plan. "It's not going to be a long and arduous process that the prior process was," the city's lawyer told the Buffalo News. But the opponent's lawyer, David Seeger, said the Wal-Mart plan still has "serious design flaws" regarding storm water management. "The city might think "Well, we'll just take another report and be done with it,'" Seeger said. "I doubt it's that simple." Wal-Mart released a short statement: "Wal-Mart is pleased that the vast majority of claims were dismissed and that the essence of the approvals was upheld by the court. We will move forward as quickly as possible to resolve a procedural ambiguity the court identified." The court dismissed the charges that Wal-Mart's traffic studies were not complete. A spokesman for Mayor Lawrence V. Soos, said Hizzoner was disappointed that the Planning Commission now has to take up the project review again. "It's just going to delay a project that the city needs a little while longer," the Mayor's office said. "A delay for that side is a victory." Attorney Seeger said the opponent's lawsuit had been worth pursuing. "We're showing them how to do things properly. It's a shame we had to go to court."

What you can do: This lawsuit was brought by North Tonawanda grocer Frank Budwey and a group of residents who live in Wurlitzer Park, which would suffer from the increased traffic near the site. The suit charged that the city and planning commission acted in an arbitrary manner to approve the project. Budwey is the owner of an independent supermarket that would suffer financially if a Wal-Mart superstore were to open in North Tonawanda. Budwey owns two grocery stores: a 38,000 s.f. store in North Tonawanda; and a 51,000 s.f. store in Buffalo. Budwey told officials in nearby Newfane, New York that because of proposed Wal-Mart supercenters in the North Tonawanda area, he has decided that he will not open his independent grocery store in town. "I feel so bad, but we were limited in what we could do there," he told The Buffalo News in April. "We did our homework, and we're looking at putting more money into our North Tonawanda store. We're looking at the possibility of a Wal-Mart Superstore coming into North Tonawanda, and we have to make our store as strong as possible to survive that hit. It's hard to stay in business." Budwey had been planning to open up a third store in Newfane in the site of a Shurfine grocery store, which was a family-owned operation that went out of business two months ago because of the competition from bigger chain grocery stores like Wal-Mart. The President of the Newfane business association admitted that residents in her town wanted a grocery store downtown. "We're very disappointed, but we will be pursuing other grocery stores because Newfane does need a grocery store. We have to be creative. We've been thinking it has to go right here [in the Shurfine location], but maybe it doesn't." But Frank Budwey won't be coming to Newfane -- because of Wal-Mart. "We have to look at the competition," he told the Buffalo News. "With a [potential] store in Newfane, we looked at the possibility of a Wal-Mart Superstore coming into Lockport... We knew the Newfane store would be half the size of our North Tonawanda store, so we'd have limitations. The numbers did it. Another thing is that the equipment [at the Newfane site] is so old, it would all have to be replaced, and it gets to the point when I can't make any money on it. We were hot to trot, and the landlord was working with us... but I looked at what I have on my plate, and this would take away from my two other stores. It's too much of a risk for me." Readers are urged to email North Tonawanda Mayor Larry Soos at larrysoos@northtonawanda.org with the following message: "Dear Mayor Soos, Your city has focused on projects like the Ascension Industries expansion, which add good paying jobs to your local economy, and the hotel project on Webster Street. You stated in your State of the City address in February, 2008 that the Wal-Mart project would 'increase the city's property tax base, increase sales tax dollars, create construction jobs and full and part-time jobs.' But you are dead wrong. You have no evidence of any real boost to the local economy from a Wal-Mart. What you know for sure is that NT has lost 9% of its population since 1990. So when you add more retail, you only slice the pie thinner. Wal-Mart gains market share, but other merchants lose it. You already have 6 Wal-Marts within 19 miles of your city. A supercenter will merely put more pressure on stores like Budwey's. If that store closes, you will have to subtract the jobs, property taxes and sales taxes lost from your Wal-Mart 'gains.' You listed Wal-Mart in your speech as an item of 'unfinished business.' 'Continue to push for the construction of Wal-Mart in our community,' you said. 'The tax dollars, sales tax revenue, and jobs are needed in our community. This matter has been dissected and reviewed in all the proper forums and within all legal requirements. It is time that this matter be moved forward proactively.' You gave your blessing to a project before any of the real traffic and environmental impacts were even known. Wal-Mart is a form of economic displacement, not economic development, and building this huge supercenter will be a decision that local residents will regret for many years to come -- until the Wal-Mart closes and leaves. As predicted, your vote in support of the supercenter led to a courtroom, not a ribbon-cutting. Now the court has remanded the stormwater review back to the city -- where it never got a fair hearing in the first place. You should talk to the other merchants in your community, and you will understand why they will never be part of your political base again. In your rush to bring in the big national chains stores, you have stepped all over your local merchants. They will no doubt be looking for ways to return the favor."










 
 
"Norman has become the guru of the anti-Wal-Mart movement" ~ 60 Minutes

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