7/17/2009

Smart Growth v Wal-Mart III

Posted by MJ

The LUSJ  is reporting that I will continue to be spending my grocery money in Erie County for at least another year.

Legal papers filed this past Monday with the Rochester-based Fourth Department, Appellate Division of state Supreme Court, show Smart Growth wants a rehearing on a portion of its earlier appeal to that court, which claims the town planning and zoning boards violated various laws by approving the Supercenter site plan and associated documents.

If the Fourth Department declines to recommend the waiver question to the Court of Appeals, Smart Growth may then appeal to the court directly. An attorney with knowledge of the process said Wednesday that Smart Growth didn’t have to ask the Rochester court for a referral, but in doing so is able to cause a lengthier delay in Supercenter development.
And so it goes. If it has been kicked out and the confirmed by the appellate court how can they ask for another rehearing? Maybe the town would have it easier just changing the law in question? ;)



In other news  Niagara Falls has a nice new one with wide aisles, skylights etc. If anything this delay will ensure we have the most up to date store layout which has changed a lot since the one in Clarence went up.
 
Having a place to do a majority of grocery shopping near home is the big missing key for us right now. I know we will not be getting a Wegman's ever, but at least get the new Wal-Mart Supercenter going. Aldi and Sav-a-lot prices are not worth the experience and the prices at Tops and Quality just aren't worth it.
 
Maybe the city could strike a deal for the farm land between Summit and Ruhlman?
 
Post and Comments from last year.
 
UPDATE (07/17/09):
The Buffalo News now has an article with some additional information.

Mark Davison, a motions clerk for the Appellate Division, said the court is in its summer hiatus and won’t consider the case until September. He said the soonest a decision could be issued is Oct. 2.
Town Attorney Daniel E. Seaman said that although Wal-Mart hasn’t moved to complete its purchase of the Lockport Mall on South Transit Road and is not doing demolition work, the retailer is working behind the scenes to advance the project. “Everything will come together at once,” he predicted
Davison said further oral argument in the case will not be allowed. The judges will make their call based only on the papers submitted by Seaman and Smart Growth’s lawyers, Daniel A. Spitzer and Jill L. Yonkers of Buffalo’s Hodgson Russ firm.
“If they find something they’re interested in, they’ll just run with it,” Yonkers said
.
It also seems as if all the points are only technicalities as of now. I wonder why the town just doesn't change the two points that smart Growth is asking to be reconsidered. My thought is it may open the town to a whole new round of lawsuits.
The plaintiffs zeroed in on two aspects of the June 5 ruling. First, the Appellate Division ruled that there was no need for Wal-Mart to obtain a variance from the town’s rule that no more than 75 percent of a lot in its commercial corridor may be covered with buildings, parking lots or “other impervious surface areas.”


However, Smart Growth asserts that the town and Wal- Mart agreed such a variance was needed, but the town never actually granted it, and neither side submitted an argument about it to the court before June 5.

The other point is that the town’s waiver procedure, allowing the Planning Board to give applicants a pass on certain requirements of its Commercial Corridor Overlay District, confuses the functions of the Planning Board and the Zoning Board of Appeals.
In effect, the plaintiffs argue, such waivers are variances given by a board that lacks the power to grant variances, and thus, they violate state law. That’s why the Court of Appeals should take the case, Smart Growth asserts.

18 comments:

Rocketboy said...

If only we lived in a a world where the defendant could recover legal costs from the plaintiff when they pull this sort of BS. What a wonderful world that would be.

LockportGal said...

This is why this area is dying. No business wants to move into Lockport, its too much of a hassle..

I dream of Wegmans...and other retail outlets..but alas..i will be driving to Erie County for even longer. This is frivolous and annoying. All this hassle for a handful of people.

Rocketboy said...

This isn't just a Lockport thing, it just works out somehow that people with money don't like Walmart. You know, like people who want to keep competition out of an area because of their own business interests. Or people who just don't want the type of people who shop at Walmart in their area. Let's just hope the judge throws this out as well. Maybe we can get a contempt of court going on as well, seeing how the last judge basically laughed them out of the court.

MJ said...

It is a shame that there is no recourse for lost revenue/taxes due to these delays. Especially this round that comes after a 5-0 decision against them on the appellate level. Not asking directly makes this look like a stall tactic more than resting on any validity.

I still say to try to place them in the city on the site I mentioned in the post. It would add to the city tax base, breathe life into the slow leasing buildings at the corner of Summit and S. Transit and be walking distance for those staying at the hotels. Traffic could also come from the by-pass reducing the traffic load on S. Transit. All the major intersections already have left turn lanes and signals.

The mall property can slowly return to nature for those on Badger Dr. as development follows the Wal-Mart.

The city should capitalize on the proximity of this land to the "big box" area of the town. A structure like this makes no sense downtown in its basic form but would here. The city pry wants to remain friendly and not get into a competition with the town but hey...you never know.

jaws said...

I doubt Wal-Mart will change plans at this point. It would be nice haing it in the city but wouldnt count on getting any tax dollars. The city would give them tax free for eternity to build here. Wal-Mart should just aquire the land and start building, that ought to irk the neighbors and maybe end their lawsuits. Harder to get them out of there once they've started..posession is 9/10s of the law ;) Seems like the approval is inevitable at some point. I hope Tops is making millions while all this is going on, I'm sure they are.

MJ said...

From the sound of the article Wal-mart is just biding their time and preparing. Something they are pry specialists at by now.

I've updated the post with info and link to the Buffalo News article today. Pry another 18 months of waiting for an opening though.

Rocketboy said...

I just spotted the new info this morning as well. Sigh. Can't we just run smart growth out of town? I would put money down that if you took a poll of residents in the town and the city of Lockport, the gross majority would be in support of the new Walmart.

Anonymous said...

Quote: I wonder why the town just doesn't change the two points that smart Growth is asking to be reconsidered.

I wonder why the town doesn't just abide by the laws they set in the first place.

Rocketboy said...

A: How many times have their (Smart Growth) assertions been thrown out of court?

B: Is this, or is not a special case that may never have been accounted for in the orginal write-up of the law?

C: Admit it. No matter WHAT the zoning laws had to say, you would be against WalMart building a new store.

The complaints are petty at best. THE WALMART IS GOING TO REPLACE A MALL, in a COMMERCIAL/RETAIL AREA along THE BUSIEST ROAD IN THE CITY/TOWN OF LOCKPORT. It's not like they are trying to place WalMart in some residential neighborhood an a sleepy part of Lockport.

The fight against WalMart is a fight against Growth. Because if WalMart does not move, there will be a GIANT empty lot welcoming people to Lockport. A giant empty lot that now, NOBODY would ever want to try to build on.

On the other hand, WalMart moves into what would be an empty lot with a brand new building using the new design concepts that they are working on (more natural light, open isles, etc). Walmart leaves in it's wake a building that's READY TO BE MOVED INTO in a section that already has a high amount of traffic, already zoned correctly, already built. As a retailer/developer, what is more appealing to you? A zoning nightmare, or a read-to move in site?

That's what I call Smart Growth.

Rocketboy said...

And this may shed some light on the anti-WalMart croud. Caution, VERY strong language, as it's Penn & Teller's Bull***t.

But very good none the less.

http://www.youtube.com/watch?v=1ZfoNZd_HEk

(The remaining sections are in the related videos list)

Anonymous said...

Because if WalMart does not move, there will be a GIANT empty lot welcoming people to Lockport. A giant empty lot that now, NOBODY would ever want to try to build on.

By abandoning their current space they will be creating "another giant empty lot", no gain there. As far as NOBODY wanting to build on the current mall site, why don't you ask Mr. Ulrich why he put a bid on it. I doubt it was to leave it empty.

MJ said...

Why is the existing mall (400,000sqft) better than a Walmart half the size (185,000 sqft)?

Filling an existing 100,000 sqft building (old Wal-Mart) is probably easier than filling a 400,000 sqft mall.

I still don't understand why it being a Wal-Mart makes it a bad thing, yet almost any other development would be OK.

Walmart should just buy the entire site so there would be no need to divide the property and thus all the variances would be moot. Lease the old Wal-Mart building to Bon-Ton.

Rocketboy said...

No, but I'm sure it was a low bid as a long term investment. Not because he had a list of clients lined up behind him waiting to move in. Because it is a prime location, and maybe someday the problems with the site will either go away, or there will be another company willing to spend the time and effort to build on it. That's what he does, make decisions about what can make money in the future.

And no, I already mentioned why they wouldn't be leaving "another giant empty lot". The "giant empty lot" were WalMart was is zoned, developed, and built for a tenant ready to move in. A lot more of an attractive proposition then a empty lot with a bad parking lot, legal resistance, and zoning oddities.

Face it, if this isn't an Anti-WalMart issue, which I know damn well 90% of it is, NOBODY would want to bring a large store to the site. Hell, the footprint of WalMart is SMALLER than the current mall.

Let me say that again, the footprint of the proposed WalMart is SMALLER than the current mall.

If anything, we should be thankful that WalMart is willing to keep investing, doubly so when they would be investing in a brand new property.

I want to save money. I don't want to see the old mall lot turn into an empty parking lot. I don't want to keep spending all my money at Tops, or driving to Erie county, or driving to 3 different stores to do my grocery shopping. I like capitalism. I like that if a company can offer services or goods at a price that people feel is fair, then they, the people that run the company, and the people that work for the company can go far.

There. I'm honest about my motives. It would be nice if you were honest about yours.

LockportGal said...

I was in SuperWalmart on Sunday. There goes my money into Erie County again.

LockportGal said...

The poll on the US&J website is about Walmart. 81% say they are sick of all this legal stuff, and they should just let them build. I cannot believe a handful of misfits are holding up this project.

No wonder we have no stores in this town. Who wants or needs such a hassle?

David said...

When Wall Mart first wanted to move in the mall did the town impose a stay on all new construction till the new zoning laws were in place ?

MJ said...

I don't recall that though I was not following it closely back then. Nothing I have read had to do with changing the zoning laws which usually is a very big process. I've only read about the variances being requested as laid out in this article:

http://www.lockportjournal.com/archivesearch/local_story_346022337.html

Rocketboy said...

With the budget crunchs going on everwhere due to lower sales tax revenue, you would think that keeping money local would be important for people...

Alas, it looks like that's only a good idea if the money is kept 'local' by spending it at particular stores.

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