Two communities on the opposite ends of New York state have been linked together by a legal detail that could topple the largest retailer in the world. Sprawl-Busters reported on June 8, 2009 that citizens fighting a 185,000 s.f. Wal-Mart superstore in Lockport, New York had suffered a setback when the Appellate Division of the New York Supreme Court ruled against opponents of the store. A group called Lockport Citizens for Smart Growth have held up the world’s largest retailer for six years. On April 16, 2008, Sprawl-Busters noted that citizens in Lockport who were fighting to prevent a Wal-Mart supercenter in their backyards had lost their court appeal. The State Supreme Court 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. Their lawsuit charged that the zoning board “rewrote the zoning code” and exceeded its authority. Daniel Spitzer, Smart Growth’s lawyer, argued that the “extreme difficulty” waivers granted by the planning board were improper, and should have been zoning variances instead. When the court ruling came out, Spitzer told the media, “Clearly they looked at all of the issues we raised, 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?” Six months later, it was Wal-Mart that felt the legal impact of a court ruling on Long Island. Sprawl-Busters reported that Wal-Mart’s plan to build a 169,548 s.f. superstore in Riverhead, New York was tripped up in court. Despite approval by the Riverhead Town Board, local residents refused to take ‘yes’ for an answer, and threw the case into court. On October 6, 2008, the Suffolk County Supreme Court tossed out the Town Board’s approval. A 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,” the judge 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.” In the Riverhead case, the Town Board gave Wal-Mart variances for zoning laws around landscaping, parking and building standards. The board also approved the superstore site plan in a zoning district that does not permit single, freestanding stores. The judge “rejected the town board’s attempt to take jurisdiction from its zoning board and transfer it to itself,” a land use attorney told Newsday. “This case stands as a guide post to other towns and villages looking to take power from their zoning boards.” This week the Riverhead and Lockport cases became joined at the hip. Long Island lawyer James Matthews, who helped turn back Wal-Mart in Riverhead, filed papers to become an intervenor in the Lockport case against Wal-Mart. Matthews told The Buffalo News that the Riverhead and Lockport cases are very similar, and that the court should allow him to file an “amicus” brief in support of Lockport Citizens for Smart Growth. As expected, Lockport town officials were not pleased. The town’s lawyer described the Riverhead ruling as “not a very important case from our perspective.” But Spitzer, the lawyer for Smart Growth, is hoping the courts will resolve the discrepancy between the two cases. Smart Growth says that the approvals granted by the Lockport Planning Board were really variances, which should have been the province of the Zoning Board of Appeals in Lockport — not the Planning Board. But town officials charge that the Lockport decision just granted waivers from the terms of the town’s Commercial Corridor Overlay District. The lawyer from Riverhead insists that the two cases are really about the same issues. In fact, Wal-Mart has already tried to use the similarities in the cases to get the Riverhead decision overturned. Wal-Mart appealed the court’s decision in the Riverhead case, and cited the Lockport ruling as part of its argument against the Riverhead ruling. Attorney Matthews, who won the Riverhead case, told The Buffalo News that these two cases might end up being merged into one review by the Court of Appeals. “I think it’s conceivable that when there’s a ruling in our case, depending on what the ruling is, someone might move to consolidate,” he said.
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 would not have created new jobs and revenues, but simply taken sales from stores like Waldbaum’s and Stop & Shop. This was a game of retail musical chairs — and had it not been for the intervention by the United Food and Commercial Workers union, the Riverhead case would not have been challenged in court. In Lockport, Wal-Mart first brought its plans for a supercenter in 2004. Throughout this entire six year process, the neighbors have resisted this store. 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 was neither extreme, nor difficult. There is a requirement, for example, in the overlay district that 25% of a storefront be windows. But Wal-Mart said it couldn’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 felt two curb cuts were needed to prevent traffic bottlenecks. The Lockport 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.” If the Lockport superstore is ever built, the Wal-Mart discount store down the road on South Transit Road will shut down. Most of the “new” sales at Wal-Mart will come from sales at the “old” Wal-Mart store. In addition to the legal quirks that drew these two Wal-Mart proposals together, they have another common bond: neither store was needed in the first place, because both areas are saturated with Wal-Mart stores already.