On October 9, 2008, Sprawl-Busters reported that Wal-Mart had suffered a legal setback on Long Island, New York.
The town of Riverhead, which already has a 113,000 s.f. Wal-Mart discount store on Old Country Road — had its approval of a Wal-Mart supercenter overturned in the courts.
The giant retailer wanted to build a 169,548 sf. superstore on Route 58. Despite approval by the Riverhead Town Board, local residents refused to take ‘yes’ for an answer, and threw the case into court. Two lawsuits were filed: one by the United Food and Commercial Workers (UFCW), including six union members who are Riverhead residents, and the other by Riverhead PGC, the company that owns the shopping center that houses the current Wal-Mart.
Judge Thomas F. Whelan of the Suffolk County Supreme Court tossed out the Town Board’s approval. The judge ruled that Wal-Mart’s site plan violated the town’s zoning code, and the town’s comprehensive plan.
According to the court, the Town Board did not have the discretion to give Wal-Mart variances from the zoning restrictions. “The Town Board, in its role as site plan administrator, cannot approve site plan applications that run counter to the Town Law, its Comprehensive Plan, and its own zoning code,” Judge Whelan wrote. “One of the most cherished principles of our democracy is the respect and deference accorded our governing laws by our citizenry. Town Boards are not exempt from that fundamental ideal.”
The owner of the existing Wal-Mart shopping center on Route 58 and the UFCW Riverhead residents were pleased with the outcome of their court battle. “It’s a rational, sound, well-written decision,” said James Gaughran, the attorney who filed the appeal on behalf of Riverhead residents. “I think it will be difficult for them to overturn on appeal.”
Wal-Mart issued its standard disclaimer in such cases, noting that the real losers in this battle were Wal-Mart customers. But there’s a Waldbaum’s supermarket on Old Country Road near the existing Wal-Mart, and a Stop & Shop, also on Old Country Road, so the Wal-Mart superstore was more to meet Wal-Mart’s corporate needs, not the needs of area consumers.
The Town Board gave Wal-Mart variances for zoning laws around landscaping, parking and building standards. The board also approved the supestore site plan in a zoning district which does not permit single, freestanding stores. Judge Whelan rejected the town board’s attempt to take jurisdiction from its zoning board and transfer it to itself.
The town of Riverhead and Headriver LLC, the New Jersey developer planning to build the new Wal-Mart, appealed that decision of the Suffolk County Supreme Court ruling, and this week, one year and seven months later, the courts reversed themselves and have given Wal-Mart a green light for the Riverhead project.
The four-member state Appellate Division, in a ruling made May 11, overruled Judge Whelan and threw out both lawsuits on the technical ground that the UFCW workers and the owners of the Riverhead Plaza did not have legal “standing” to file a lawsuit because they were not abutters to the project. The appellate judges also rejected the argument by the Riverhead that increased traffic from the Wal-Mart supercenter would make it difficult for them to find a new tenant at their site. “Economic harm caused by business competition is not an interest protected by the zoning laws,” the ruling states.
The judges also upheld the Town Zoning Code which enables developers to fund open space in other parts of town in order to build bigger than zoning allows, a system called “transfer of development rights.”
It is not clear if local residents, or the neighboring shopping center will continue to appeal this case — but their actions have already thrown the project off schedule by more than a year and a half — a loss to Wal-Mart in excess of $100 million in sales at that site.
Riverhead is a community with roughly 34,000 people. The town already has a Wal-Mart discount store, and somehow has managed to persevere without a larger superstore. There are 5 existing Wal-Marts within 25 miles of Riverhead.
The fact is, this Wal-Mart proposal will not create new jobs and revenues, but simply transfer sales from stores like Waldbaum’s and Stop & Shop. This is a game of retail musical chairs — and had it not been for the intervention by the United Food and Commercial Workers union and the other plaza owner, the Riverhead superstore would already be open for business.
Readers are urged to email Riverhead Town Supervisor Sean Walter at [email protected] and send the following message: “Dear Supervisor Walter, You have a lengthy background in open space preservation and land use. Surely you must realize how wasteful it is for Riverhead to support more big box sprawl. The town already has a 113,000 s.f. Wal-Mart, which easily could have been converted into a superstore without adding any expansions, without any zoning permits, without any lengthy litigation. Wal-Mart is already moving to smaller, more sustainable stores by doing such an ‘in-box conversion.’
The new Wal-Mart project will be the biggest mistake you will make as Supervisor. You will end up with one empty Wal-Mart now, and a second empty store when Wal-Mart decides to move on.
This Wal-Mart proposal will not create new jobs and revenues, but simply take sales from stores like Waldbaum’s and Stop & Shop. This is a game of retail musical chairs. Riverhead would do better to put a cap on the size of retail stores, and prevent this kind of controversial proposal from dividing your community again. Put this over-sized project back in the box, and work with the Wal-Mart you already have.”
