Stewart’s lawsuit against Voorheesville tossed

— From Stewart’s Shops

Four years after Stewart’s Shops first proposed a new store at 112 Maple Ave., in Voorheesville, and 15 months after it sued the village, claiming there had been a “targeted effort to prevent” the company from building the shop, an Albany County judge dismissed the Stewart’s lawsuit against the village on Nov. 30.

VOORHEESVILLE — An Albany County Supreme Court judge has dismissed Stewart’s Shops’ first-ever lawsuit against a municipality. 

The company filed its in September 2019 against the village of Voorheesville, claiming there had been a “targeted effort to prevent Stewart’s” from building a new shop on property it owns at 112 Maple Ave. The property was the site of the now-closed Smith’s Tavern. 

Stewart’s contended that Voorheesville’s then-new zoning law, adopted in May 2019, had violated New York State Village Law, constituted spot zoning, was “otherwise arbitrary, capricious,” exceeded the village’s scope of power, was “unconstitutional, confiscatory, and without foundation in law or fact,” and should be have been declared null and void.

Acting Justice James Ferreira in his Nov. 30 decision stated that the village’s zoning code was “reasonably related to legitimate government interests,” and that Stewart’s had, in its court filings, “failed to establish that the Zoning Code is arbitrary, capricious, unconstitutional or unlawful.”

The company also failed “to identify a single procedural error” made by Voorheesville that would place it in violation of the state’s Village Law, the judge wrote.

And the rezone, Ferreira concluded, was also not a case of spot zoning, because, when the village adopted new zoning, it “changed the zoning of numerous properties in the Village, including all of those in the Creekside Commercial District,” which runs along the Vly Creek and includes 112 Maple Ave.

“Thus, it  cannot  be said that [Stewart’s] parcel of  land was ‘singled out for a use classification totally different from that of the surrounding area’ for purposes of spot zoning,” Ferreira wrote in his decision. 

Stewart’s told The Enterprise it is “considering an appeal.”

The county court is the lowest rung in the state’s three-tiered court system.

The lawsuit — an Article 78 proceeding, typically brought by citizens questioning government actions — had been filed against both the village of Voorheesville and its board of trustees. 

In April 2019, at a public hearing on proposed updates to Voorheesville’s zoning code — which were a direct result of the village’s adoption of a comprehensive plan — 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 pumps 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 a first for the 75-year-old company.


Where it started

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 earlier court filings, which the company did in January. That shop, in the center of the village, no longer had gas pumps.

“It’s really because we were unable to seek approval to change the zoning from [112 Maple Ave.] that we purchased,” Stewart’s spokeswoman Erica Komoroske told The Enterprise at the time about closing the South Main Street shop.

In April 2016, representatives from Stewart’s had 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 then — it had been owned by Jon McClelland and John Mellen, proprietors of Smith’s Tavern.

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, which is next to the Vly Creek and across from Voorheesville Elementary School.

That September, the Voorheesville Board of Trustees 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 about water contamination.

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.”

After the contentious September 2016 hearing, the village board deferred the moratorium and instead set up a committee to develop a comprehensive plan; the trustees were also faced with a controversy over a proposed planned unit development proposed by St. Matthew’s Church, for apartments in the village 

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

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

In May 2017, the Voorheesville Planning Commission 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, with which the commission proceeded.

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 comprehensive plan, once adopted, in effect did not allow Stewart’s to build a gas station and convenience store at 112 Maple Ave. The comprehensive plan says that, in the Creekside Commercial District, “no ‘formula [chain] businesses’ should be allowed.” The plan also says that “petroleum dispensing” is not consistent with the district.

Stewart’s 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,” and introduced, “for the first and only time in the comprehensive plan, the ‘formula-based business’ concept, and prohibited petroleum storage based uses,” an earlier company complaint stated.

In making its argument for the annulment of the village’s zoning code, Stewart’s claimed that Voorheesville’s ban on formula-based businesses was unconstitutional because it went “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 “formula-based business prohibition applie[d] to all property owners in the Creekside Commercial District,” Ferreira wrote in his Nov. 30 decision, stating that the prohibition was applied “uniformly without regard to ownership.” 

Stewart’s had also claimed that “special facts exist” that warranted the “application of the prior zoning code.” The “special facts exception,” the company asserted, had been used when a public official had “willfully withheld and refused to issue” a permit to an applicant. 

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

“To the contrary,” Ferreira wrote in his decision, “a landowner only acquires vested rights to complete a project when, pursuant to a legally issued permit, the landowner demonstrates a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further development.”

Stewart’s was never “issued a permit, approval, or authorization of any kind to proceed with its project,” the Nov. 30 decision states. 

“In fact,” Ferreira wrote, Stewart’s “elected to withdraw its application and never concluded the application process.” 

“Thus,” the company, “never had a valid approval  from which it acquired a vested right in completing the project at 112 Maple Avenue,” the judge concluded.


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