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Suit threatened as Wal-Mart plan clears Lockport Planning Board

A lawsuit probably will follow Tuesday's unanimous approval of the Wal-Mart supercenter project by the town Planning Board.

Buffalo attorney David J. Seeger said he thinks the Planning Board's action was illegal and said he intends to discuss the matter soon with his clients, Lockport Citizens for Smart Growth. He said he expects to sue around Dec. 15.

With little discussion, the Planning Board wrapped up a process that began in March 2004, when Wal-Mart formally presented a plan for a combination supermarket and discount store at the site of the Lockport Mall on South Transit Road.

Approval of the project had been a foregone conclusion for nearly a year. It would have come last winter except that Wal-Mart placed the project on hold in January after its purchase option on the mall property had expired.

During the negotiations to renew that deal, Wal-Mart ended up agreeing to find a new use for its current store a quarter-mile south of the mall. The original plan had called for Wal-Mart to swap the site with General Growth Properties, the Chicago company that owns the mall.

Rodney W. Conrad Jr., a board member noted, that, because of public suggestions and the board's own ideas, the size of the supercenter was reduced to 185,000 from 203,000 square feet and shifted 128 feet; gasoline pumps, an outdoor garden center and pharmacy drive-through were barred; and the board forced Wal-Mart to pay for new sidewalks along Shimer Drive and Locust Street Extension to make those areas safer as traffic increases.

"We're replacing the antiquated Lockport Mall," Conrad said. "Who knows what would happen (to that) if Wal-Mart fell through?"

The mall is empty except for a Bon-Ton store, which will remain as a stand-alone establishment, sharing an 861-space parking lot with Wal-Mart.

The rest of the mall would be demolished. General Growth will continue to act as Bon-Ton's landlord, which required a subdivision of the property plus a special use permit and assorted waivers from the commercial corridor overlay district rules in the town's code book.

But Seeger insisted those accommodations, in part, make the approval illegal.

Town laws require a special use permit for a building exceeding 120,000 square feet, and the proposed Wal-Mart would not qualify unless it complies with other requirements in that law.

"It doesn't meet the dimensional requirements, and, therefore, it isn't eligible for a special use permit," Seeger said. No waivers or variances, he contends, can change that.

Building Inspector Eugene Nenni confirmed he had denied Seeger's request for an advisory opinion on whether Wal-Mart was eligible for a special use permit because Seeger wasn't the applicant for the permit. Seeger said he has appealed that to the Zoning Board of Appeals, which Nenni said has not responded.

Town Attorney Daniel E. Seaman refused to release the text of the 41 conditions the Planning Board attached to the special use permit until they are filed with the clerk.

He said Wal-Mart received every waiver it requested in its Sept. 18 letters to the Planning Board.

The project now needs only the approval of the Zoning Board of Appeals, which is considering a request for 12 variances.

Seaman said the Zoning Board will not act on those at its meeting next Tuesday, but probably will choose a date to do so.

He said he expects a special meeting next month.

Margaret "Micki" Magno, a leader of Citizens for Smart Growth and a resident whose home abuts the mall property, said the store is just too big for the site.

"According to our zoning laws, they should be putting the parking in the back," she said. "I think it would be nice if we had an entire Wal-Mart on a space that's big enough for it in the town. We've got a lot of room."

Planning Board member Robert Langdon derided the notion that the mall site is too small. "What we're putting there is 100,000 square feet smaller than what's there now," he said.

Seeger claimed that the project actually needs about 60 variances. "They're trying to put too much into too little a piece of property. If they were to 'fess up to the 60, their foolishness would be exposed to the world," he said.

Seeger wouldn't say who is paying him but he said he will not represent the Lockport group for free.

"It'll be in the thousands," he said of the lawsuit's cost. "We'll strike a bargain."

e-mail: tprohaska@buffnews.com

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