Stewart’s threatens to sue Voorheesville if village adopts new zoning

VOORHEESVILLE — The second public hearing on the proposed updates to Voorheesville’s zoning code, again, brought out representatives from Stewart’s, who offered a preview of what the company was prepared to do if changes to the zoning code were approved.

At the April 30 hearing, Michael Ginley, general counsel for Stewart’s Shops, asked that the village board rescind the changes to the comprehensive plan that disallowed Stewart’s to build a new shop with gasoline at 112 Maple Ave.

Ginley said that, if Voorheesville went ahead and adopted the proposed changes to the zoning code, “Stewart’s will be filing an Article 78 against the village,” which would be the first time in the company’s history that it has brought an Article 78 proceeding against a municipality.

An Article 78 proceeding is typically brought by citizens who have decided to legally challenge a government action.

In September 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 of Smith’s Tavern, next to the Vly Creek and across from Voorheesville Elementary School.

That same 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 longstanding concerns about water contamination.

Chuck Marshall, who works in real-estate development for Stewart’s, then responded, “It’s more about zoning than water quality.”

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.”

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

Once the comprehensive plan was adopted, it had in effect forbidden Stewart’s from building on land that it owns at 112 Maple Ave., the site of the now-closed Smith’s Tavern. The comprehensive plan says that in the Creekside Commercial District, which includes Smith’s Tavern, “no ‘formula [chain] businesses’ should be allowed.” The plan also says that “petroleum dispensing” is not consistent with the district.

The Voorheesville Planning Commission in June 2017 cited pedestrian safety as well as flooding and erosion as reasons for issuing a positive declaration on its State Environmental Quality Review, which would have subjected the proposed project to an in-depth environmental review. Stewart’s had threatened to sue if the commission issued a positive declaration.

On April 30, Ginley said that, in the history of obtaining approvals for over 300 stores, Stewart’s had never received a positive declaration on a SEQR review.

That’s not an accident; the company looks to buy land only where the necessary zoning is in place already, which was the case in Voorheesville in 2017, except that a special-use permit was required for gas pumps.

When the company was researching properties in the village, Ginley said, there was only one parcel of land that was both big enough for a new store and, “more importantly,” was zoned for gasoline service.

“That property was 112 Maple Ave.,” he said.

Based on the property meeting the company’s criteria, he said, Stewart’s signed a contract to purchase the property.

For the next year, he said, the required paperwork was submitted and the required meetings of the planning commission were attended. During that year, Ginley claimed, Stewart’s spent $100,000 in engineering costs while also footing the bill for the village’s engineering costs, another $30,000. Marshall in 2017 Marshall estimated that the Voorheesville Stewart’s, including gas pumps as well as the store, would cost about $1.5 million to build.

Ginley claimed that, in the entire history of Stewart’s having to obtain approvals, the $30,000 the company paid for Voorheesville’s engineering costs was more than double what Stewart’s had ever paid for an outside engineer.

And still, he said, after a year of planning committee meetings and paying for the village’s engineering, Stewart’s received a positive declaration on its SEQR review. “Point being, that the village appeared to be doing everything in its power to delay our project,” he said.

While the positive declaration was a surprise, Ginley said, and it meant spending more money on an environmental impact statement, the company still felt that the approval process was moving forward, because most of the issues that would be fleshed out in the environmental impact statement, had been addressed already by both the engineer for Stewart’s and the village.

“So, based upon the meetings to date combined with a seller who wanted us to close, we closed and bought the property in June 2017 for $750,000,” he said. And within a week of closing, the village enacted its building moratorium, Ginley said, placing on hold all projects pending a possible revision to the village comprehensive plan.

Ginley believes the Article 78 challenge would be successful because, he said, the company had obtained “vested rights” to complete the project, which is based on the time and money that the company has spent in attempting to obtain approvals as well as the cost of the property itself.

The second reason why Ginley thinks Stewart’s would be successful in its Article 78 challenge is because the proposed change would “amount to a regulatory taking,” which, according to Cornell Law School, “means that the government restricts the owner's rights so much that the governmental action becomes the functional equivalent of a physical seizure.”

In New Scotland, a similar “taking” argument had been made by the owners of the old Bender melon farm when the town decided to rezone the hamlet of New Scotland, where the farm is located. The town subsequently adopted the hamlet plan and a lawsuit has yet to be filed.

Ginley concluded by saying that Stewart’s wanted to be in Voorheesville, continue to employ local residents, provide the products people need, add to the village’s tax base, and continue to participate in and make contributions to local charities.

Stewart’s recently closed its shop, from which the gas pumps had been removed, in the village of Voorheesville, and has three other shops with gas pumps in New Scotland — one in Feura Bush, a second on Route 85 not far from Town Hall, and a third near Clarksville.

After Ginley finished speaking, village resident Steven Schreiber added more context to the story.

Stewart’s had, Schreiber said, “ignored a lot of history in this whole affair.” The initial proposal for a convenience store and gas station, he said, had brought out a lot of the community, who were upset by the proposed design. All this happened before Stewart’s bought 112 Maple Ave., Schreiber said, and the company was “clearly aware that there was significant opposition.”

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