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Walmart foes threaten new suit, claim Lockport's approval of project expired

Foes of the Walmart supercenter project are threatening to sue the Town of Lockport again, claiming the building and demolition permits the town issued last week were illegal.

Daniel A. Spitzer, attorney for Lockport Smart Growth, a group of citizens opposing the project at the Lockport Mall site, said Monday the approvals the Planning Board granted the project in November 2007 have expired, and Walmart can't go forward without reapplying, paying another application fee and going through another public hearing.

The town anticipated this angle at the Nov. 12, 2008, Planning Board meeting. The board passed a resolution declaring that the one-year period to use the approvals wouldn't start until all litigation in the case had concluded. That occurred early last year.

Spitzer wasn't impressed, saying the Planning Board's 2008 resolution was itself illegal.

"Show me where [the law] gives the Planning Board the authority to change the town law," Spitzer said. "This is just a giveaway to Walmart."

"I won't comment on potential litigation," said Town Attorney Daniel E. Seaman, who wrote the resolution.

The town's own zoning ordinance imposes the one-year deadline.

Lockport Smart Growth filed suit to try to overturn the Planning Board's approvals of the project. But the group lost in State Supreme Court in 2008 and in the Appellate Division in 2009.

According to Building Inspector Brian M. Belson, the clock didn't start to run until the State Court of Appeals refused to hear Lockport Smart Growth's last appeal. That decision came down last Feb. 23.

"We'll see Mr. Spitzer in court again," Supervisor Marc R. Smith said. "We feel very confident in our position."

A Dec. 9 letter to Smith and Seaman from Margaret "Micki" Magno, a member of Smart Growth, called the Walmart project "dead and buried, unless a new application and application process is commenced," because the deadline for using the permit had passed.

"If they give Walmart what we consider illegal permits, then my clients are considering litigation," Spitzer said Monday.

Belson said the permits issued last week cover demolition of the mall except for The Bon-Ton store, which is to remain open, and for construction of a tower in a courtyard that is to be installed between The Bon-Ton and the new Walmart. No building permit has been issued for the Walmart store itself, Belson said.

Also, Walmart needs a storm water runoff permit and approval of its construction plans, Belson said. The town's engineering firm can review the runoff request, and Belson said he can review the construction plans; no further public votes are needed from any of the town's boards, Belson said.

The building and demolition permits were issued after Walmart's $3.95 million purchase of the mall was recorded in the Niagara County Clerk's Office last Tuesday. Walmart bought it from Lockport Mall LLC, an entity controlled by General Growth Properties of Chicago.

General Growth will remain as The Bon-Ton's landlord and as owner of three "outparcels," currently occupied by two fast-food restaurants and a bank.

Walmart plans to erect a 185,209-square-foot combination supermarket and discount store on the site, replacing its current discount store a quarter-mile south of the mall on South Transit Road.

e-mail: tprohaska@buffnews.com

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