VOORHEESVILLE — Stewart’s Shops has announced that, for the first time in company history, it is suing a municipality because of what it claims is a “targeted effort to prevent Stewart’s” 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 — has been filed against both the village of Voorheesville and its board of trustees. 

Mayor Robert Conway could not comment on the lawsuit, he said, but noted that the company delivered on what it had said it was going to do if the village didn’t allow it to move forward with its plans. 

Stewart’s in 2017 had threatened to sue if the Voorheesville Planning Commission issued a positive declaration on its State Environmental Quality Review, which would have subjected the proposed project to an in-depth environmental review.

The planning commission in June 2017 had cited pedestrian safety as well as flooding and erosion as reasons for issuing a positive declaration, to trigger an in-depth review.

In April, 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.

Stewart’s spokeswoman Erica Komoroske would not comment on the suit.

The company is seeking to have the village’s new zoning code, adopted in May, declared null and void “on the ground that it fails to conform to a properly promulgated Comprehensive Plan,” the complaint states. Stewart’s 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 court papers, which the company did in January. 

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

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 Conway said at the time that the village proposed the moratorium because of longstanding 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.”

“Though unstated by the Village, as the Stewart’s project was the only gas station under review at that time, and the new store would be located adjacent to the Village’s only existing gas station, the moratorium was directly targeted at Stewart’s,” the company states in its complaint.  

“The Village did not ultimately enact the gas station moratorium, its thinly-veiled determination to single out and stop the Stewart’s project was now evident to all,” the complaint says. 

Stewart’s purchased the former Smith’s Tavern in May 2017 for $750,000; the company claims in court papers that, in order to receive the requisite approvals it needed from the village, it spent another $140,000 on “plans, studies and other expenses, among other charges.”

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 at St. Matthew’s Church, for apartments in the village — set up a committee to develop a comprehensive plan.

Stewart’s Shops claims 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 complaint states.

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

Nan Stolzenburg, the consultant, 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 said this week. 

The draft plan was then submitted to the village trustees, with whom she also worked, who did their own review of the plan, Stolzenburg told The Enterprise on Monday, Oct. 7. 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. 

Stewart’s doesn’t normally have a problem with Stolzenburg’s work. 

As part of a submission to the village of Altamont to request a zoning change in July, the company included an analysis that was more favorable than not to its request and was performed by Stolzenburg in 2015, when the company first applied for a zoning change in Altamont. A lawsuit filed in April by a group of Altamont residents against the village board and Stewart’s prompted the company to reapply for the zoning change, which the village board had already approved in December 2018.

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, which includes the now-closed Smith’s Tavern, “no ‘formula [chain] businesses’ should be allowed.” The plan also says that “petroleum dispensing” is not consistent with the district.

In court documents, Stewart’s claims that a member of the village’s comprehensive plan committee stated that “the restrictions against Stewart’s in the comprehensive plan” were not in the plan when the committee worked on it, and that the changes “were only added once the plan was in the Village’s hands.”