On June 23, 2009, Sprawl-Busters reported that the Mayor’s office in North Tonawanda, New York had described a court decision to send a Wal-Mart supercenter back to the Planning Board a ‘victory’ for opponents. Wal-Mart called the court ruling a ‘procedural ambiguity.’ For opponents of the proposed Wal-Mart in North Tonawanda, the court’s ruling in late June 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 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 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. 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. 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 city requires 1 parking space for every 100 square feet of store. 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. 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 Wal-Mart a city-owned access road — following the recommendations of 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. 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 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 has 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 shows 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 Mayor Lawrence V. Soos, said the Mayor 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.” This wee, more than two months after the judge’s ruling, the North Tonawanda Planning Commission will take up both a storm-water management plan and a final site plan on September 8th. Not surprisingly, the city’s Engineer has recommended that Wal-Mart’s stormwater management plan be approved. The Engineer claims that Wal-Mart’s huge superstore will result in less stormwater flow from the site than if an office park had been approved on the site. By choosing a controversial site, Wal-Mart has spent several years wrangling over this plan, instead of selling cheap Chinese underwear.
The lawsuit that has delayed Wal-Mart was 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 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. “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 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 [email protected] 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.’ Then, in your 2010 budget message, you said: ‘Wal-Mart has been approved, but has hit, as all Wal-Marts do, a legal roadblock by anti Wal-Mart groups. I am totally behind the project as Wal-Mart is not looking to receive any tax breaks and it is projected that it will bring in over $400,000 in city, county, and school property taxes based upon current tax rates.’ But you are dead wrong. You have no evidence of any real boost to the local economy from a Wal-Mart. You have repeated, as most Mayors do, Wal-Mart’s press release on jobs and taxes. But all 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 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.’ 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. Your analysis of Wal-Mart is a great example of economic illiteracy. 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 tem. Then make sure this project is not approved on September 8th.”