Published: November 28, 2007 01:12 am      

WAL-MART: Attorney retained in case lawsuit is filed

TOWN OF LOCKPORT — Town of Lockport — The town is retaining Daniel E. Seaman’s law firm in the event a lawsuit is filed over approvals for a Wal-Mart supercenter.

Board members voted unanimously at the end of a pre-Thanksgiving work session last week to retain Seaman Jones Hogan & Brooks, the firm in which town attorney Seaman is a member. The retainer is “in anticipation of litigation with regards to Wal-Mart,” Town Clerk Nancy Brooks said.

After the town planning board on Nov. 20 approved a site plan and waivers green-lighting a supercenter at the vacant Lockport Mall, the attorney for Citizens For Smart Growth talked with reporters about legal options for overturning the site plan.

Smart Growth’s attorney, David Seeger, says the mall site is too small for Wal-Mart and the planning board is ignoring local law to accommodate it. Members of the newly formed Taxpayers for Accountable Government also are vocal opponents of the plan.

Smart Growth, whose members generally own homes near the mall, still hasn’t decided whether to pursue legal action, principal Margaret Magno said Tuesday.

Resolution sponsor Mark Crocker said the board wanted to be ready, anyway.

“We have read ... the parties out there are considering legal action,” Crocker said. “We’re just preparing in the event we’re pulled into it.”

Realistically, the town has to expect it will be subjected to legal action, Supervisor Marc Smith said.

“We think it’s a very real (threat). There hasn’t been a Wal-Mart in Western New York in the last seven years that hasn’t been litigated. ... I think Seeger represented most of the (opposition suits),” he said.

The board voted to retain Seaman’s firm after a Nov. 21 executive discussion that was closed to the public and press.

Board member David Knight, who seconded the motion, said it makes sense, strategically, for the town to retain Seaman’s firm.

“Dan’s been connected with the issue since the inception of this Wal-Mart project. It’s probably better than hiring new at this point,” Knight said.

The resolution is to retain the firm and use its services if needed. The firm is not authorized to begin doing any legal work now, Crocker said.

As town attorney, Seaman is paid a salary in excess of $93,000. He’s a municipal attorney advising all units of town government, but his contractual duties don’t include litigation, according to Nancy Brooks. Sometimes Seaman takes on litigation for an extra fee, and other times the town retains a law firm for the purpose, she said.

Magno thinks there’s potentially a conflict of interest in Seaman’s firm being tapped to defend his work as the town attorney. The work has included writing the justifications for waivers of commercial corridor overlay district code that Smart Growth is objecting to.

“(Seaman) should recuse himself altogether. His law firm is going to gain from litigation, if there is any, and he certainly has been a star player in all of this,” Magno said.

Smith doesn’t see any potential conflict for the town in using Seaman’s firm. The only time a conflict would arise, he said, is if Seaman or his firm had ever represented “the other side” of a suit or dispute.

Smart Growth is undecided on pursuit of legal action at this point, Magno said, partly because the Zoning Board of Appeals hasn’t yet issued decisions on 12 variance requests by Wal-Mart and General Growth Properties, the current mall owner. It’s anticipated the zoning board will vote on the requests next month.

Contact reporter Joyce Miles at 439-9222, ext. 6245.