Stewart’s threatens suit as planning commission seeks environmental review

An artist’s rendering shows how the new Stewart’s convenience store and gas station would look at the site where the now-empty Smith’s Tavern stands. Stewart’s has threatened “legal action” because Voorheesville’s planning commission is pursuing an in-depth environmental review of the project.

VOORHEESVILLE — Tuesday night, the village’s planning commission did not change its course, seeking in-depth environmental review of a proposed gas station, despite a threat from Stewart’s Shops to sue.

The large chain wants to build a store with gas pumps next to the Vly Creek and across from Voorheesville Elementary School. The commission is concerned about pedestrian safety as well as flooding and erosion. But Stewart’s Shops claims the request for in-depth review is unlawful and merely a delaying tactic.

“We decided to do a full-blown SEQR review,” said the commission’s chairwoman, Georgia Gray, referring to the State Environmental Quality Review process, at the start of Tuesday’s meeting. “We issued a positive determination; we just signed the form today,” she said to a crowd that filled the firehouse meeting room.

“We made crystal clear in our letter, we don’t think you have the lawful authority to go down that path,” responded Leah Everhart from the gallery. She is a lawyer with Miller, Mannix, Schachner & Hafner of Glens Falls, representing Stewart’s.

The June 9 letter, obtained by The Enterprise, concludes, referring to Tuesday’s meeting, “If the Planning Commission does not act upon Stewart’s Application at its next meeting, then we will have no choice but to recommend that Stewart’s pursue legal action.”

Stewart’s has purchased the property at 112 Maple Ave. in the heart of the village, which had long been the home of the iconic Smith’s Tavern. The restaurant closed on May 27. Owners Jon D. McClelland and John H. Mellen sold the property to Stewart’s Shops Corp. for $750,000, according to Albany County records, which also show that McClelland and Mellen purchased the property in 1991 from Frank L. Smith Jr. and Gertrude R. Smith for $220,000.

Stewart’s wants to build a 3,675-square-foot store at the site, which is zoned commercially, but needs a special-use permit to put in gas pumps. The property is next to a Mobil gas station and convenience store, across the street from Voorheesville Elementary School, and backs up to the Vly Creek.

In 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.”

Marshall maintained that the village didn’t want two gas stations next to each other. “I’ve made  an offer to the company that owns the Mobil station,” he said, referencing L.P. Sunoco. “Nothing’s come of it; they’re not interested in selling.”

At the September 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.” Stewart’s made its application that month.

Ultimately, the village board, after the contentious September hearing, deferred taking action on a moratorium. After the hearing, Conway told The Enterprise, “We’ve been asking ourselves: Is the current zoning sufficient?” Last fall, the village was also dealing with a controversial proposal for a planned-unit development that would have allowed St. Matthew’s Church to build an apartment complex next to the church on Mountainview Street and would have applied as well to the other half-dozen tracts of 7.5 acres of land in the village. Later in September, the village board decided to appoint a committee to work with a paid consultant to create a comprehensive land-use plan, which is still being developed.

On April 11, the planning commission held a packed hearing on granting the special-use permit where 13 of the 21 speakers opposed the Stewart’s plan, five favored it, and three were in between. Most of the concerns focused on increased traffic, flooding, and safety.

Marshall estimated that the Voorheesville Stewart’s, including gas pumps as well as the store, would cost about $1.5 million to build. He told The Enterprise in May he expected the commission would make its decision at the June 13 meeting since it had 62 days from the time of the hearing to decide on the permit.

Asked about the 62-day deadline on Wednesday, Reilly said, “The SEQR process has to be completed before we can act.” He had explained at the April hearing that, under the SEQR process, the commission had two choices: It could decide to issue either a negative declaration, meaning there are only minor environmental concerns — and the board could move on to site-plan review and making a decision on the special-use permit — or it could decide on a positive declaration. “We’re not ready for our ultimate determination,” Gray said after Tuesday’s meeting.

Asked in May what would happen if Stewart’s did not get the required permit, Marshall said, “We’ve never encountered that, so we don’t have a plan.”

Commission’s concerns

Gray told The Enterprise after Tuesday’s meeting that the planning commission had followed the same procedure with the Stewart’s application as it does with any other; this involves working through the state’s environmental assessment form.

The form has 11 questions, which may be answered in two ways — there will be a moderate to large impact, or, alternatively, there will be no impact or a small impact. For the Stewart’s application, the commission checked five areas as causing a moderate to large impact and wrote, in a draft obtained by The Enterprise, additional comments:

— Changing the use or intensity of use of the land: The commission notes the surrounding land uses are principally residential and raises concerns about lighting, noise, and increased traffic — pointing out that the restaurant was not active, as Stewart’s would be, when children and parents are walking to school;

— Impairing the character or quality of the existing community: The commission notes “adverse visual aspects, including nighttime lighting, a large canopy structure, proximity and orientation to the street and a generic storefront not oriented to the street”;

— Adversely changing the existing level of traffic or affecting existing infrastructure for mass transit, biking, or walkways: Noting the proximity to the elementary school and the high level of use of the sidewalk, the commission cites an “increased potential for pedestrian and bicycle accidents”;

— Increasing the potential for erosion, flooding, or drainage problems: The downstream area of the Vly Creek could erode, the commission says, as could the base of the proposed retaining wall. It notes that the Vly Creek is a protected trout stream.

It also says that 4,000 cubic yards of fill is to be placed in the mapped 100-year floodplain and that storms have generated flow greater than the 100-year flood event. The commission is requiring the 500-year flood event be analyzed in addition to the 100-year flood event along with a severe storm event and two combined severe storm events, looking at erosion upstream and downstream as well as road flooding and overtopping the Route 85A bridge.

Further, the commission is concerned with the potential for pollutants — including gasoline drips, oil spills, trash, and floating plastic debris — entering the Vly Creek floodplain; and

— Creating a hazard to environmental resources or human health: The proximity of Stewart’s to the Vly Creek leads the commission to be concerned  about “an increased amount of gas dispensing with associated drips, engine oil and cooling system leakage from cars and trucks, and engine oil/antifreeze maintenance activities.”

Gray said that leaking from gas storage tanks is not a concern for the commission. “Technical and safety regulations are in place that make that the least of our concerns,” she said.

The draft SEQR form reflects this, stating, “Given all the safeguards that are required for petroleum bulk storage facilities in New York State, the Planning Commission does not believe the proposed petroleum bulk storage and dispensing constitutes a potentially significant adverse impact.”

The commission’s primary concern is safety, Gray said. “The issue everyone felt strongest about is pedestrian safety,” she said, noting the site is near the school, there is no sidewalk on the other side of the street, and there is an “odd T” intersection.

“With Stewart’s, you’ll have more traffic, and more children walking or bicycling there,” she said. “There’s a whole level of peril for pedestrians that there never was with Smitty’s.” Gray remembered a comment commission member Kevin Garrity had made during the board’s hours of discussion: “He said, ‘If some kid got run over on a bike, I couldn’t live with it.’”

Stewart’s view

Everhart’s three-and-a-half-page letter states that Stewart’s does not object to environmental review undertaken in “a reasonable and responsible manner” but asserts that the Voorheesville commission is using the process as “a dilatory review tactic.”

She writes, “We are aware of no other Stewart’s Shop across the State (of which there are over 300) ever being subject to a Positive Declaration.”

She says that the commission treated the Stewart’s application as a SEQRA Unlisted Action while the project actually constitutes a SEQRA Type II Action, which is exempt from SEQRA review, making the commission's determination “a legal nullity.”

Everhart cites the section of law that exempts commercial construction of less than 4,000 square feet — Stewart’s building proposal is for 3,675 square feet — from the purview of the State Environmental Quality Review Act provided the project is consistent with local land-use controls.

Calling this “a technicality,” Gray said that the commission had consulted with a lawyer recommended by Reilly who is an expert in the field — Terresa Bakner, a partner at Whiteman Osterman & Hanna of Albany — and, “She said, ‘Yes, they are correct because of the building being less than 4,000 feet,’ but these are still our concerns and we can carry on. We decided to do this.”

Bakner did not return calls seeking comment on Wednesday but Reilly then called The Enterprise in her stead. “The footprint of the building is less than 4,000 square feet but, if you factor in the canopy [over the gas pumps], it’s well over,” Reilly said.

He went on, “At the end of the day, the applicant submitted it as an unlisted action; it’s how we’ve proceeded for the past nine months.”

Everhart’s letter goes on to say, “Stewart’s Application is relatively straightforward, yet the review effort has now cost Stewart’s $30,000 in Commission Engineering fees and has lasted 9 months. We now understand that, during that review effort, the Village Board was pursuing revision of its Comprehensive Plan in order to alter the zoning in such a way as to prevent construction of a new Stewart’s….In other words, the Commission in effect sought to do what the Village board previously opted not to do — adopt a ‘de facto’ Moratorium to prevent construction of a Stewart’s Shop.”

Gray said the commission has imposed no moratorium, and has no power to do so but instead has raised legitimate concerns as part of its review process. “We think these are real issues,” she said. “We stand by them as a board and were advised by our attorneys.” She said of Stewart’s, “They can sue us or decide to work with us.”

Everhart’s letter also asserts that community members wanted to protect the Mobil station from competition to which Gray responded that is of no concern to the commission. “This is America; there’s competition,” she said.

The letter also says, “Despite the fact that fuel storage is a common occurrence and is expressly allowed in this zoning district, Stewart’s was called upon to justify how it would design fuel storage to resist the effects of simultaneous natural disasters, such as an earthquake followed quickly by a 100-year flood event.”

While Gray agreed that Stewart’s would meet state regulations on fuel storage, she said, “You can’t scoff at the flooding and the impact on the Vly Creek, falling in the floodplain.”

Everhart’s letter goes on to state, “While Stewart’s has been willing to cooperate with the Commission, it now appears that the Commission’s efforts have been an unlawful attempt to effectively adopt a Moratorium in the absence of the Village Board doing so.”

“They’re looking back at a failed attempt of the village board in the interest of intimidating us,” Gray responded.

She went on of commission members, “I don’t think any of us object to a new Stewart’s in Voorheesville. The question is: What is the best location?”

Everhart’s letter concludes, in summary, referring to Tuesday’s meeting, “Therefore, unless the Commission rescinds its previous SEQRA Resolution and immediately takes action on the underlying Applications at its upcoming meeting, Stewart’s will be forced to protect its legal interests in the property.”

The Enterprise asked Reilly if the village is prepared to defend the planning commission in court. “I think the commission has been working hard to do their job and will continue to do so,” Reilly responded. “Whatever course the applicant chooses, we’ll respond accordingly.”

Updated on June 16, 2017: Information on the sales price of the Smith’s Tavern property was added when it became available from Albany County.

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