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Town taps its attorney to lead suit defense Outside assistance OK'd in Rite Aid action

Phyllis Todaro will be lead attorney for the Town of Elma in a lawsuit against the town by Rite Aid drugstores.

The Town Board, meeting Wednesday, also voted, 3-2, to allow Todaro, the town attorney, to seek any outside assistance she needs from the Sargent and Collins law firm.

Councilmen David Polak and Susan Glownia voted against what they called a "blank check." Polak has long favored appointing a town attorney with municipal law experience so the town doesn't have to use outside legal counsel.

The town has until Nov. 27 to respond to the suit by Rite Aid, which accuses the town of dragging its feet on plans for a new drugstore -- eventually scuttled when a moratorium on commercial development was enacted so the town could update its codes.

Ralph Lorigo, attorney for Rite Aid, argues that the moratorium was adopted to block the drugstore. He noted in the lawsuit that the proposed site on Bowen Road met town requirements, including proper zoning. Rite Aid also performed a traffic study, applied for an application for a business use permit last November and an application for a site-plan approval last December. Lorigo also said a full environmental assessment was submitted.

Last Feb. 14, the Town Board imposed a six-month moratorium on commercial development -- a sanction that was extended to a full year on April 18. Under the moratorium, however, businesses are entitled to seek a variance clause for hardship. On March 1, Rite Aid applied for a variance and sought to argue its case at a March 7 hearing. However, Rite Aid didn't win a hearing until April 25. The variance was denied.

Town officials said Rite Aid did not prove hardship.

In other matters the board:

*Adopted a 2008 town budget of $6.7 million in a 4-1 vote, with Polak casting the lone dissenting vote. The spending plan features a tax rate of $26.20 per $1,000, a decrease of 74 cents. Polak opposed funding to the newly formed Conservation Advisory Board. The budget was passed after a public hearing.

*Voted to ask State Supreme Court Justice Sharon Townsend to appoint a justice to oversee the court while Elma Town Justice Robert Pierce recovers from open heart surgery.

*Voted to accept the resignation of court clerk Jeannine Willson and appointed Donna Dimitroff as her replacement at $11 per hour.

*Voted 4-1 to approve paying $228,558 to satisfy the terms of the Town Hall mortgage. The current budget was also amended to reflect the payment from the surplus fund. Councilman Polak, who cast the lone no vote, favored the town investing the money instead of retiring the debt.

*Tabled a request by EduKids Early Childhood Centers, 6961 Seneca St., for a special-use permit to build a 7,700-square-foot building to replace its current headquarters, about 5,500 square feet, which would be demolished. The plan also requires a hardship variance because of the moratorium against commercial development. A public hearing will be held at 8 p.m. Dec. 19.

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