North Tonawanda, NY. Another Lawsuit Filed In Wal-Mart Superstore Battle
After nearly four years of trying to push its way into the small community of North Tonawanda, New York, Wal-Mart has merely pushed itself into a court room -- again.
On June 23, 2009, Sprawl-Busters reported that a court had decided to send a Wal-Mart supercenter back to the Planning Board. Wal-Mart called the court ruling a 'procedural ambiguity.' But for opponents of the proposed Wal-Mart in North Tonawanda, the court's ruling forced another delay in the superstore project -- and any delay was good news.
This story tracks back to April 8, 2008, when the Mayor of North Tonawanda told the media he 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. North Tonawanda 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 stood in the way: local residents.
The retailer's first proposal did not go over well, so the corporation pulled it from the table, 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 was on the traffic problems that this store would 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 an astro-roots "citizens" group called Lumber City Liaisons for Wal-Mart, which testified in favor of the plan. In April of 2008, 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 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 would get worse in coming years.
On August 12, 2008, Sprawl-Busters reported that city officials were giving the Mayor what he wanted. The Zoning Board of Appeals approved two variances. The land itself is zoned industrial. Wal-Mart's lawyer was pleased with the resulting variances they were 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 that was cut in half to 915 spaces at Wal-Mart's request. The dramatic reduction was 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 already had been approved by the city's Planning Commission. Wal-Mart's lawyer called the final reviews "mostly just mechanical."
On September 8, 2008, the Planning Commission approved the site 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 Wal-Mart a city-owned access road -- following the recommendations of then-Mayor Larry Soos.
Supporters of the plan said the project would increase city tax revenues by $400,000 annually. North Tonawanda First made it clear they intended to appeal the September 8th decision. This wired decision was, in fact, appealed by North Tonawanda First and by independent grocer Frank S. Budwey in October, 2008. On February 18, 2009, four months after the lawsuit was filed, 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 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.
In late June of 2009, the New York State Supreme Court ruled that the case had to be sent back to the city's Planning Commission for review of a storm water pollution control plan. The court required Wal-Mart to submit a plan that indicated how it would handle stormwater runoff. The Planning Commission also had to approve a final site plan for the Wal-Mart, according to the court ruling. "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 after the court ruling. "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 the Mayor said he 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."
On August 30, 2009, Sprawl-Busters noted that the North Tonawanda Planning Commission was going to take up both a storm-water management plan and a final site plan on September 8th. Not surprisingly, the city's Engineer recommended that Wal-Mart's stormwater management plan be approved. The engineer claimed that Wal-Mart's huge superstore would result in less stormwater flow from the site than if an office park had been approved on the site. The Planning Commission approved Wal-Mart's stormwater pollution prevention plan and overall site plan for the second time.
"They approved the plans tonight but do we agree that the plan really does meet the minimum legal requirements? They say it does, we say it doesn't," Attorney David Seeger told the Tonawanda News. The stormwater pollution prevention plan, the approval of which was required Monday along with re-approval of the overall site plan, is likely to become the basis for a second lawsuit against the city. North Tonawanda First had a month to file another lawsuit. "We're considering all options. We haven't made a final decision yet -- one option is to go back to Judge Bonniello and ask him to rule on whether the [stormwater pollution prevention plan] approval should be overturned or not," Seeger said.
Frank Budwey, the area grocer who is fighting this superstore, said the group would decide whether to file another lawsuit.
This week the Wal-Mart project was back in the Tonawanda News. The Common Council met this week, only to hear the city's attorney explain that North Tonawanda First had filed another lawsuit to block the retailer. "We just got served today," the town's lawyer annnounced. "I'm in the process of reviewing the papers. Just like all the other lawsuits this one is baseless and we're confident it will be thrown out."
But North Tonwanda First will have another day in court on August 18th, when the case comes besfore Judge Boniello in the state Supreme Court in Niagara Falls.
What you can do: The lawsuits that have delayed Wal-Mart were brought by North Tonawanda grocer Frank Budwey and a group of residents who live in Wurlitzer Park, who would suffer from the increased traffic near the site. The suits originally 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. "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 in April of 2009 because of the competition from bigger chain grocery stores like Wal-Mart. The President of the Newfane, New York 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 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" Budwey admitted.
Readers are urged to email North Tonawanda Mayor Robert Ortt at email@example.com with the following message: "Dear Mayor Ortt, Your predecessor in office, Mayor Larry Soos, liked to tell voters that the Wal-Mart project in your town would bring in over $400,000 in city, county, and school property taxes based upon current tax rates. But you have no evidence of any real boost to the local economy from a Wal-Mart. All you know for sure is that NT has lost 9% of its population since 1990.
When you add more retail, you only slice the pie thinner. Wal-Mart gains market share, but other merchants lose sales. 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.'
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. The Common Council's support for this supercenter has led to a courtroom, not a ribbon-cutting. Now this project is headed to court -- again.
In your rush to bring in the big national chains stores, you have stepped all over your local merchants. Don't start counting your $400,000 in annual revenues just yet. Once you net out losses elsewhere, this project adds very little value to your community.
Talk to your existing merchants off the record, and they will tell you the truth about Wal-Mart's impact on them. North Tonawanda should back out of the lawsuit and let Wal-Mart pay for the full cost of its own defense in court."