Lockport, NY. Residents Still Battling Wal-Mart After Six Years
On June 8, 2009, Sprawl-Busters reported that citizens in Lockport, New York had locked down the world's largest retailer for five years -- and probably cost Wal-Mart as much as $500 million in lost sales at that location. A year and a half later, there is still no Wal-Mart superstore in Lockport.
The residents in Lockport have not let legal setbacks knock them off their stride. In April of 2008, citizens lost their court appeal. But 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, Smart Growth's lawyer, said the waivers should snot 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 the April's 2008 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 reiterated 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.
In June of 2009, a 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."
This week the Lockport battle was back in the news, The Buffalo News says that Lockport Smart Growth is once again considering suing the town, charging that the building and demolition permits the town issued last week were illegal. Attorney Spitzer said the Planning Board approvals that were given for this project in November of 2007 have expired, and that Wal-Mart has to reapply for the permit, and have another public hearing.
What you can do: Attorney Spitzer said the approvals the Planning Board granted the project in November 2007 have expired, and Wal-Mart can't go forward without reapplying, paying another application fee and going through another public hearing.
But town officials say the approvals granted did not take effect until all legal issues were over, and that the permits granted are still valid. Spitzer told the Buffalo News what the Board did was illegal. "Show me where [the law] gives the Planning Board the authority to change the town law. This is just a giveaway to Walmart."
Margaret Magno, one of the leaders of Lockport Smart Growth, send a letter to town officials calling the Wal-Mart "dead and buried" unless a new application is filed, because the old permit granted has expired. Town officials claim that no building permit has actually been issue for the Wal-Mart itself, and that the permits granted had to do with demolition on the site of an existing mall.
Wal-Mart bought the site from General Growth Properties just last week, and the demolition and construction permit for a tower on the site were granted once they owned the property. General Growth will remain landlord for other retailers on the site, but Wal-Mart will own its building.
Walmart wants to build a 185,600 s.f. superstore on the site, less than half a mile from an existing Wal-Mart discount store which it will close. The mall's owner, General Growth Properties filed for bankruptcy in 2009. 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 have locked Wal-Mart out for six 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 six 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.
The Town Board should admit that the permits have expired, and require Wal-Mart to reapply -- and this time they should be told to remodel their existing store, and let the mall neighbors go back to their lives."