Voorheesville’s first filing in Stewart’s lawsuit seeks dismissal of all claims

Stewart’s Shops

— From Stewart’s Shops
Stewart’s Shops had proposed a gas station and convenience store for a location it owns 112 Maple Ave. in Voorheesville, but the village adopted a comprehensive plan and eventually new zoning which would not make that possible. The company sued in September 2019 to be able to build the store.

VOORHEESVILLE — The village has asked Albany County Supreme Court Judge James Ferreira to dismiss the first-ever lawsuit brought by Stewart’s Shops against a municipality. Voorheesville argues that the company has provided a “woefully insufficient basis” for Ferreira to overturn “the Village’s legitimate exercise of its legislative authority.”

Stewart’s Shops — a chain with over 300 convenience stores and gas stations in upstate New York and western Vermont — announced in September 2019 it was suing Voorheesville for what it claimed had been a “targeted effort to prevent” the company from building a new shop on property it owns at 112 Maple Ave. in the village. 

The lawsuit — an Article 78 proceeding, typically brought by citizens questioning government actions, combined with a declaratory judgment action — was filed against both the village of Voorheesville and its board of trustees.

Village attorney Richard Reilly told The Enterprise that neither he nor any of the villages’ trustees could comment on pending litigation.

“We’ve tried to compromise and work with the Village of Voorheesville, but all efforts remain futile,” Stewart’s spokeswoman Erica Komoroske said in a statement to The Enterprise. “The case against the village is simply to protect our rights and our investment in good faith; our ultimate goal remains to provide the residents of Voorheesville with a new Stewart’s Shop.”

Not all court filings for this lawsuit are available to the public through the Albany County Clerk’s Office. After repeated attempts to obtain the documents, The Enterprise was informed that some of the court papers had never been filed with the clerk’s office but rather were filed with the Albany County Supreme Court.

The Enterprise obtained this court filing on Wednesday from the village of Voorheesville.

Stewart’s is seeking to have the village’s new zoning law, adopted in May 2019, declared null and void “on the ground that it fails to conform to a properly promulgated Comprehensive Plan.” In addition, the company is also asking that the zoning district created by the new code around 112 Maple Ave. be declared a case of illegal spot zoning.

In early 2016, citing space constraints, Stewart’s made the decision to eventually close its Voorheesville shop at 42 South Main St., according to the company’s September 2019 court filing, which it did in January 2019

In April 2016, according to the village’s November 2019 filing, representatives from Stewart’s met with village officials to discuss a concept plan the company had for a new shop with gasoline service at 112 Maple Ave.; the company did not own the property at this time. Rather, the property was owned by Jon McClelland and John Mellen, proprietors of Smith’s Tavern.

The village, court papers assert, “voiced concerns about the proximity of the new proposed location to Vly Creek, particularly because the proposed gas station would sit almost entirely within the creek’s floodplain … Village officials also raised concerns about vehicular traffic and pedestrian safety, stemming from the neighboring elementary school. Stewart’s representative dismissed the Village’s concerns and indicated that Stewart’s would push the project forward regardless.”

In June 2016, Stewart’s submitted to the village planning commission an application for a site plan review. In July 2016, the company applied for a special-use permit to put in gas pumps next to a convenience store it wanted to build at the site next to the Vly Creek and across from Voorheesville Elementary School.

That September, the Voorheesville Village Board held a public hearing on a six-month moratorium to prevent any new gas pumps in the village. Mayor Robert Conway said at the time that the village proposed the moratorium because of long-standing concerns over water contamination.

Also at the September 2016 hearing, Reilly, the village attorney, said, “If the board decides to change zoning, it has the right to do it; Stewart’s proceeds at its own risk.”

After the contentious September 2016 hearing, the village board deferred the moratorium and instead — also faced with a controversy over a proposed planned unit development near Saint Matthew’s Church — set up a committee to develop a comprehensive plan.

Stewart’s submitted a revised site plan in November 2016, court documents state. And after more back-and-forth between the planning commission and Stewart’s, according to the filing, a public hearing on Stewart’s application took place in April 2017.

Stewart’s purchased the former Smith’s Tavern in May 2017 for $750,000, and claimed that it spent another $140,000 to receive the requisite approvals it needed from the village.

The planning commission in May 2017, according to court papers, issued a positive declaration on its State Environmental Quality Review for the proposed project at 112 Maple Ave., concluding the “project would have a moderate to large impact on the use or intensity of the site, the character/quality of the existing community, the potential for erosion, flooding, or drainage problems, environmental or human health, and traffic.”

In June 2017, Stewart’s threatened to sue if the village’s planning commission pursued an in-depth environmental review of the project, which the commission proceeded with.

That same month, the village board adopted a law that instituted a six-month moratorium on development, according to the filing. The law also allowed for variances as well as for the moratorium to be extended two more times for six months each time, court papers show. 

The village adopted its comprehensive plan in June 2018 and its new zoning code based on the plan in May 2019.

The village in its November 2018 filing, citing case law, states that the zoning law should be upheld if it were “adopted for a valid governmental purpose” and if “there is a reasonable relation between the end sought to be achieved by the [law] and the means used to achieve that end.”

Here, the village maintains, it is on solid ground. 

“The Village’s new zoning law was enacted for the very purpose of codifying the stated objectives and goals of the Village’s new comprehensive plan,” court documents say. 

Voorheesville also cites a similarly settled case to make its point.

In Greenport Group versus Town of Southold, the town had considered a zoning change, deferred, but passed the change a year later. Greenport Group had intended to build multi-residence senior housing on the land, which it could no longer do because of the rezone.

In that case, the Sothold’s planning department had previously conducted a study of the area that was ultimately rezoned. The study “identified  certain planning objectives, including the preservation of the rural character and environment in that area,” court papers state; the rezone was also recommended by the town’s planning consultant.

The court found the rezone was “consistent with a well-considered land-use plan,” and was therefore a lawful zoning adoption. 

Drawing parallels, Voorheesville makes its case for coming up with a well-considered land-use plan and by extension a lawful adoption of its zoning code: “Here, the Board adopted the zoning  law after at least four years of review, study, and analysis of the Village conditions, natural resources, and the Vly Creek floodplain.

“The zoning law adopted by the Board of Trustees is wholly consistent with the validly adopted comprehensive plan, reflects the plan’s designated objectives, and promotes the safety, health, morals, and well-being of the Village community.”

Stewart’s also claimed that its proposed project had been compliant with the initial draft of the village’s comprehensive plan. 

“However, once the comprehensive plan committee completed their draft, the Village unilaterally determined to incorporate several provisions directed specifically at Stewart’s, by engaging a consultant to draft ‘Appendix 8,’ which introduced, for the first and only time in the comprehensive plan, the ‘formula based business’ concept, and prohibited petroleum storage based uses,” the company’s September 2019 complaint stated.

The village dismisses this claim and states this “nonsensical argument must also be rejected,” because Stewart’s proposed project had been compliant with “the draft comprehensive plan.” 

The village states that the development of “the final comprehensive plan” was the result of “long, collaborative process” that included input from the community as well as an “extensive analysis” of village conditions — both current and anticipated. 

The village board’s “engaging” of a consultant also happened long before the drafting of Appendix 8. 

Nan Stolzenburg, the consultant who was hired to help the village develop its comprehensive plan, first worked with the comprehensive plan committee — which developed the draft plan. 

The draft plan was then submitted to the village trustees, with whom Stolzenburg also worked, who did their own review of the plan. In addition, the village trustees made some of their own changes, including developing and drafting Appendix 8, which added information and specifics to recommendations that were laid out in the main part of the plan — which had happened after much discussion over a number of meetings. 

Voorheesville argues that the rezoning of 112 Maple Ave. is not a case of illegal spot zoning because the former Smith’s Tavern wasn’t “singled out” as being the only property rezoned when the new zoning was adopted. The new law “changed the zoning of numerous properties in the Village,” court documents state, which included the new Creekside Commercial District, where 112 Maple Ave. is located. 

Further, the villlage argues, citing case law, that spot zoning does not exist when a rezone is undertaken in accordance with a comprehensive plan. 

Court documents state that Voorheesville’s “zoning law — including the Creekside Commercial District and the limitations on development within the Vly Creek floodplain — is  wholly consistent with the Village’s comprehensive plan and reflects the result of the Village’s years-long study and review of the Village’s conditions, resources, and public concerns.”

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