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Deadline set in appeal by Wal-Mart foes Lockport group told to act or forfeit suit

After Wal-Mart urged an appeals court to force opponents of its Lockport supercenter plan to fish or cut bait, the court imposed a Nov. 21 deadline for a complete appeal to be filed, attorneys in the case said Monday.

The deadline was set after Wal-Mart filed a motion with the Appellate Division of State Supreme Court in Rochester, ordering Lockport Smart Growth, the citizens' group opposing the planned South Transit Road store, to get on with their appeal or have it dismissed out of hand.

The result of the motion was the imposition of a deadline in an order late last month, Town Attorney Daniel E. Seaman told the Town Board in a work session Monday.

Daniel A. Spitzer, attorney for Lockport Smart Growth, said he will meet the deadline to "perfect" the appeal.

That means to submit the full case record for a five-judge appeals panel to review. Once that is done, the court will schedule a date for oral arguments, which are presumably several months away.

After the town Planning and Zoning boards gave Wal-Mart the approvals it sought to tear down most of the Lockport Mall and replace it with a 185,000-square-foot combination supermarket and discount store, the retailer said it wouldn't proceed with work until all legal threats had been disposed of.

Lockport Smart Growth, spearheaded by residents who live near the mall site, had said even before the approvals that a court challenge was coming.

In Lockport, State Supreme Court Justice Richard C. Kloch Sr. ruled April 14 that the town violated no laws last November and December in approving Wal-Mart's requests for waivers and variances from the town's zoning code.

After Kloch signed his formal order in the case May 13, Smart Growth met a 30-day deadline to file a notice of appeal, but nothing much has happened since then.

Seaman said Wal-Mart got tired of waiting and urged the Appellate Division to either dismiss the suit or force Smart Growth to finish filing paperwork.

Spitzer said the sides were going back and forth on exactly what documents needed to be included in the appeal file. He said the delay "is not unusual in a record of this size. . . . The record alone is eight volumes."

He said that includes all the environmental impact studies that were done when the plan was before the two appointed Lockport boards.

Seaman told the Town Board, "When they perfect their appeal, they submit that -- arguments and briefs."

Spitzer said, "We basically feel the scope of the variances was so broad that [the boards] basically rewrote the provisions [of the town's laws]."


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