Voorheesville: Stewart's Shops proceeded with ‘eyes wide shut’

A Stewart’s store in the nearby village of Altamont.

VOORHEESVILLE — Stewart’s Shops has asked that Albany County Supreme Court Judge James Ferreira deny the village of Voorheesville’s November 2019 request to dismiss the first-ever lawsuit brought by the company against a municipality.

In its December 2019 court filing, Stewart’s states that Voorheesville’s request for dismissal should be denied in part because the village’s claim that it was legitimately exercising its legal legislative authority by adopting a new zoning law is not accurate. Stewart’s claims that Voorheesville’s actions were “far from an ordinary municipal comprehensive planning and zoning enactment process.”

Rather, the company claims, the adopted zoning code was adapted from a   comprehensive plan that was “manipulated, by the Village, to include material specifically directed at Stewart’s”; this would allow the village to make the claim that the new zoning was adopted — Stewart’s-targeted prohibitions and all — “in accordance with a comprehensive plan reflecting the goals of the community as a whole.”

The company announced in September 2019 that it was suing Voorheesville for what it claimed had been a “targeted effort to prevent” it from building a new shop on property it owns at 112 Maple Ave. in the village, the site of the now-closed Smith’s Tavern. 

Stewart’s has asked the court to declare null and void — and to annul and set aside — the new zoning law adopted by the village in May 2019 because, it claims, the basis of the code, the comprehensive plan adopted by Voorheesville in June 2018, was improperly instituted. 

The company has also asked that Local Law Number 1 of 2019 be declared a case of illegal spot zoning. In addition, Stewart’s requested that the court grant it an injunction so that it can build a gasoline station at 112 Maple Ave. 

And the company asked that the village be made to pay Stewart’s legal bills as well as any “such other and further relief as the Court deems just and proper.”

Voorheesville responded to Stewart’s in a January court filing, maintaining that nothing the company claimed in its December 2019 filing “alters the conclusion that the Village lawfully changed its zoning code for the district in which the subject property is located.”

The village asserts that the “undisputed facts in the record show” the lawful process of updating the zoning code had started long before Stewart’s decided to buy 112 Maple Ave., which it did “with eyes wide shut,” Voorheesville’s January filing states. 

 And, as it did in November 2019, Voorheesville again asks that Stewart’s claims “be dismissed in their entirety in favor of the Village.”


Formula-based business prohibition

In making its argument for the annulment of the village’s zoning code, Stewart’s claims that Voorheesville’s ban on formula-based businesses is unconstitutional because it “goes to the ownership of the property, instead of the use … .” 

A formula business, according to the village’s comprehensive plan, is defined as a business that is required “by contractual or other arrangements to be virtually identical to businesses in other communities because of standardized architecture, services, merchandise, decor, uniforms and the like.”  

The state’s Village Law, Stewart’s claims, allows Voorheesville to institute zoning “for the purpose of promoting the health, safety, morals, or the general welfare of the community.” 

But zoning and land-use laws, Stewart’s argues, “relate directly to the physical use of land,” and “regulate the utilization of or the potential impact of land use on neighboring properties.”

Those regulations are considered to be invalid when they “restrict the details of operation or manner of on-site use which do not impact neighboring properties,” as is the case with Voorheesville’s adoption of the formula-based business concept, Stewart’s argues.

By instituting the formula-based business concept, Voorheesville is attempting to “police” the owner of the land rather than regulate allowable uses of the land, Stewart’s alleges. 

The village refutes this claim in its January response, stating that the case law cited by Stewart’s “is inapplicable to the facts” because the formula-based business prohibition applies equally to each property owner in the Creekside Commercial District — as it does property owners in other recently-zoned districts.  

In fact, the village claims, Stewart’s is not disallowed from opening a new shop in the Creekside Commercial District. The company “may operate a convenience store (without gasoline pumps) at 112 Maple Avenue,” the January filing states, “but it may not operate a standardized, formula-based gasoline station that negatively impacts the community aesthetic and small-town charm.”

Stewart’s says it has been targeted by the village because Voorheesville’s zoning would allow for a stand-alone business that is exactly like a Stewart’s Shop in every conceivable way — as long as there was no “contractual arrangement” that dictated, among other things, what uniforms employees wore or what merchandise was stocked on the stores shelves.

“Someone could have the identical facility, right down to everything but the name, and if they do not own another facility outside of Voorheesville, it is permitted,” the company claims. 

In court papers, the Stewart’s uses the example of a “Stuart’s” shop that, the company claims, would be allowed under the village code — the only changes made are the store’s name and colors.

Stewart’s argument that a stand-alone “Stuart’s” shop would be allowed under the new code “is of no consequence,” the village asserts in its January court filing, because, as a gas station, “neither proposed store would be permitted in the Creekside Commercial District.”

The village in its January court filing calls Stewart’s “attack” on Voorheesville’s formula-based business prohibition “a red herring,” because, “after the zone change,” the company’s application was “unlawful” because, among other restrictions, it included gasoline storage — which the zoning code doesn’t allow for in the Creekside Commercial District.

Stewart’s “is not aggrieved” by the prohibition on formula-based businesses, Voorheesville asserts in its January court filing. For 20 pages, “including mock-up graphic depictions,” the company attempts to explain that the prohibition regulates the property’s owner rather than its use, which makes the formula-based business prohibition unconstitutional.

“Noticeably absent from this discussion,” according to the village, “is the fact that Stewart’s proposed gas station is not allowed in the Creekside Commercial District for multiple reasons other than the formula business prohibition.”

Among the other reasons cited by the village in its January response are that the sale or storage of gasoline are prohibited within the Vly Creek’s floodplain; parking is not allowed in the front of any commercial building; there’s a prohibition to adding fill or building a new structure within the the Vly Creek’s floodplain — unless the new structure is built in the same footprint as a pre-existing building; and there is a separate prohibition against having structures — for example, a gas canopy and pumps — located within a front yard.

“These prohibitions, any one of which precludes the Stewart’s proposed use, apply regardless of whether a business is a formula business or not,” Voorheesville states in its January court filing. 



Stewart’s, in its December 2019 court filing, states both the village’s comprehensive plan and the zoning adopted based on recommendations laid out in the plan improperly targeted the company. The comprehensive plan, Stewart’s claims, was written to appease a “vocal minority or even majority” who opposed the company and not, as the law says, “to benefit the community as a whole.” 

The village, in its January response, states that Stewart’s claim is “easily dispelled.” The comprehensive plan, the village asserts, was developed only after months of meetings, extensive community input — including a residential survey — and coordination with its planning consultant.

Stewart’s, the village says in its January court filing, “further suggests” that Voorheesville’s comprehensive planning process began “with some nefarious motive,” directed specifically at the company. But the best that the company can come up with, the village asserts, are generic assertions that the comprehensive plan was “improperly adopted” because the plan conflicts with Stewart’s proposed project.  

“Notably, Stewart’s does not identify a single procedural error made by the Village in adopting its comprehensive plan,” Voorheesville’s court documents show.

The company further claims that the comprehensive plan was “doctored” by the village board and its consultant “to specifically prohibit Stewart’s,” the plan in turn was then used to “justify” the village’s adoption of an “unlawful” and “discriminatory” zoning code. 

The draft plan that had been presented by the comprehensive plan committee in December 2017 would have allowed for Stewart’s to build its shop and gas station at 112 Maple Ave., the company claims.

But, when that December 2017 draft plan was presented to the board of trustees, Stewart’s alleges, the board “determined to manufacture a basis to prohibit” the project. The board did so, according to Stewart’s, by “engag[ing] the planning consultant, Nan Stolzenburg, to draft the new appendices.”

In its first court filing in September 2019, Stewart’s claimed that the formula-based business concept was added for the first time to the comprehensive plan with the addition of Appendix 8.

Appendix 8, the company claims, “seems to have been developed under the direction” of the board of trustees and without the input of the comprehensive plan committee. “Which is notable,” Stewart’s claims, because Appendix 8 contained a lot of new material that adversely impacted its project. 

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

Stolzenburg was hired to help the village develop its comprehensive plan, and, first, she worked with the comprehensive plan committee — which developed the draft plan, she told previously told The Enterprise.

The draft plan was then submitted to the village trustees, with whom she also worked, who did their own review of the plan, Stolzenburg said in October 2019. 

In addition, the village trustees made some of their own changes, including developing and drafting Appendix 8, adding 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, Stolzenburg said at the time.

Appendix 8 did not apply only to the Creekside Commercial District, Voorheesville states in its January response; it “also provided extensive guidance and recommendations for five of the newly designed zoning districts.”

Because the changes in Appendix 8 were added after the first draft of the comprehensive plan, the village says in its January filing, Stewart’s makes the claim that this “further editing” and inclusion of “additional recommendations” was “somehow improper.”

“Rather,” Voorheesville asserts, “[The law] explicitly provides that it is the Village Board, not an advisory committee of community stakeholders, that has the authority, and indeed, the responsibility, to develop and adopt the Village's comprehensive plan … The Board properly discharged this responsibility in coordination with the public and its planning consultant.”


‘On a trajectory’

Stewart’s asserts in its December 2019 filing that Voorheesville’s earlier claim that it was “on a trajectory,” independent of Stewart’s actions, toward enacting village-wide comprehensive planning and zoning “is belied” by the village’s own records, which Stewart’s says “contain no evidence of any discussion” of comprehensive planning and zoning until September 2016 — three months after Stewart’s submitted to the village planning commission an application for a site plan review.

The company claims it notified the village in March 2016 of its intent to file an application for a new shop with gasoline service at 112 Maple Ave. 

The village’s November 2019 filing stated that representatives from Stewart’s met with village officials in April 2016 to discuss a concept plan the company had for the new shop with gasoline service.

Voorheesville’s November 2019 court papers assert that the village “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.”

Stewart’s in its December 2019 response claims that, by May 2016, the village had taken “action to halt the project.”

 Stewart’s did not then own the property at 112 Maple Ave. At the time, the building was still owned by Jon McClelland and John Mellen, proprietors of Smith’s Tavern.

Stewart’s did not buy 112 Maple Ave. until May 2017.

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.

The moratorium and contamination concerns, Stewart’s claims in December 2019 court papers, were used to keep the company from building its new shop and gas station.

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.

Also at the September 2016 hearing, Richard 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.”

The decision to buy the property at 112 Maple Ave. “was made based on sound business principles,” Chuck Marshall, a real-estate representative for Stewart’s asserts in an affidavit. The resources invested by the company, Marshall states, yielded “a rigorous review of the project.”

And coupled “with the fact that” the village engineer “had concurred with all [of Stewart’s] findings to date,” Marshall says in his affidavit, Stewart’s was able to determine in dollars and cents what it would take “to complete the project.”



In its December 2019 filing, Stewart’s claims that, “as a result” of being “targeted,” intentionally delayed, and having received an “unprecedented” positive declaration on its State Environmental Quality Review, “special facts should apply here and Stewart’s should be able to develop its project pursuant to the prior zoning enactment.”

In June 2017, Stewart’s had threatened to sue if Voorheesville’s planning commission proceeded with an in-depth environmental review.

Stewart’s also claims that “special facts exist” which warrant the “application of the prior zoning code.”

The “special facts exception,” the company asserts, has been used when a public official has “willfully withheld and refused to issue” a permit to an applicant. 

And where an official’s action may have “hindered” or “misled” an applicant, Stewart’s claims, “to that end that” had the official issued the permit in a reasonable amount of time, the company could have “acquired a vested right” prior to the adoption of the new zoning code. 

The company asserts that the village’s November 2019 claim of a “business-as-usual review” of Stewart’s application was, in fact, a process marred by “bad faith” and “undue” delays, which the company claims “clearly show” the village was “deliberately hindering and delaying” its application.

Ultimately, the village planning commission in May 2017 issuing 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.”

Stewarts claims the positive declaration is “noteworthy” because, as a Type II Action, the project was “exempt from review.”

The village in its January response states that “Stewart’s claims that the Planning Commission’s positive declaration of environmental significance is evidence of bad faith, because the Village should have classified the project as a Type II action for SEQRA purposes.”

In New York State, most proposed projects, or “actions,” are required to undergo an environmental assessment, known as the State Environmental Quality Review, or SEQR, process, to determine if the project would have an environmental impact.

If it is found that the project would have an impact, it is classified as one of three actions — Type I, Type II, or Unlisted — according to the SEQR process, which is a series of questions that the “lead agency,” in this case, the village planning commision, must ask about a proposed project.

Type II actions are “categorically excluded” from SEQR because they have been pre-determined not to have a significant adverse environmental impact.

Stewart’s makes the claim that it objected to the classification of 112 Maple Ave. as as an Unlisted Action rather than a Type II action, the village asserts in its January filing, but “the factual support for this contention is a letter from Stewart’s counsel dated June 9, 2017 — more than a month after the positive declaration was adopted and approximately six months after the Planning Commission began the process to declare itself lead agency, an action which would not have been necessary for a Type II action.”

Special-facts exception?

The village makes a further claim that Stewart’s cannot make a “special facts exception” argument because, among other things, the company withdrew its application; in addition, the application it submitted in 2016 did not comply with the village’s zoning code at the time. “The special facts exception only applies where an applicant establishes that its pending application complied in all respects with the then-existing zoning requirements,” Voorheesville says in its January court filing. 

“Stewart’s first application required a variance for its proposed canopy structure,” for which it “never attempted to obtain a variance, yet insists that one was not necessary or that it would have ‘ensured any necessary variances were obtained, or modified the project such that variances were not required,’” the village states in court document. 

“Moreover,” the village states, after withdrawing it, Stewart’s resubmitted its application after the new zoning was adopted — which “require[d] a new application to be filed”; Stewart’s had been notified of this, the village claims.

The company did not submit its new application until May 31, 2019, three days after the village adopted its new zoning law, the village states.

“Thus, Stewart’s did not have a pending application before the Village when the Board of Trustees voted to adopt the new zoning code which rendered the Stewart’s proposal impermissible in the Creekside Commercial District. As such, Stewart's cannot successfully invoke the special facts exception to construct its gas station under the prior zoning law.”

More New Scotland News

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  • The New Scotland Town Board unanimously adopted the budget at its Nov. 9 meeting, where it also discussed the need for new planning board members due to the impending resignation of Christine Galvin and previous departure of board alternate Robert Davies.

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