Published: November 22, 2008 01:48 am      

WALMART: Smart Growth expected to file appeal on Supercenter construction

TOWN OF LOCKPORT — Attorneys for Lockport Smart Growth Inc. were expected to file the particulars of an appeal concerning Walmart Supercenter construction Friday.

Smart Growth attorney Dan Spitzer said the appeal, to be filed with the 4th Department Appellate Division in Rochester, seeks reversal of State Supreme Court Justice Richard Kloch’s April decision upholding town approvals of Supercenter construction at the vacant Lockport Mall.

By court order, Smart Growth had until Friday to state the particulars of its argument or forfeit its right to challenge Kloch.

Now, Spitzer said, the Town of Lockport and Walmart has to respond to the appeal, and the court would set a date for hearing the sides and ruling who’s right.

It all means Walmart would be no closer to starting to build a Lockport supercenter than it was a year ago, when the town planning board approved the site plan and the Zoning Board of Appeals granted a series of variances that were the last barriers to town approval of the project.

Smart Growth, a group of homeowners near the mall, filed suit against the planning and zoning boards and Walmart within weeks of each board’s decisions. The group claimed the planning board’s grant of a series of “extreme hardship” waivers on the project was improper, that ZBA should have required more variances of Walmart and that both boards ignored local planning and zoning laws to make the project “fit” the mall lot minus the BonTon building.

Kloch upheld the town’s positions in a mid-April ruling. Smart Growth filed paperwork reserving its right to challenge his ruling in June. The town and Walmart sought dismissal, but the 4th Department gave Smart Growth a Friday deadline for fleshing out its case in writing. The appeal repeats the claims of the original suits, Spitzer said.

So long as a legal threat against town approvals remains, corporate spokesman Phil Serghini said previously, Walmart will not take any steps to advance mall demolition or supercenter construction.

Walmart first proposed a supercenter at the mall in early 2004. It yanked that original proposal months later; resubmitted and yanked back a scaled-down version in 2006-07; and returned with the second plan in mid-2007. That’s what was approved by the planning and zoning boards in November and December.