A Wal-Mart at the Northgate Plaza: Political Reality in a Nutshell

Robert Magee, Lead Writer, RMagee@albanylaw.edu

The Northgate Plaza is a run down shopping plaza in Greece, New York, a town seven miles northwest of Rochester.  The Northgate Plaza’s story isn’t unlike those of a lot of shopping plazas in the state.  It was built in 1953 during an economic upswing that was only able to carry the plaza for about 25 years.1 Though it was once home to big name stores like J.C. Penny and Woolworth’s,2 the plaza’s biggest draws nowadays are a Hallmark Store, a Citizen’s Bank, a Big Lots marked by a broken sign, and “what might be the slowest, 24-hour McDonald’s, in the history of mankind.”3 Much of the Northgate Plaza is vacant and all involved agree that the plaza has fallen into disrepair.  Like many such plazas in its situation, the Northgate’s owners, the Widewaters Group, have looked to Walmart to resuscitate it and Walmart is seeking to oblige.4 Walmart has agreed to build a “supercenter” in the plaza, which would require much of the existing plaza to be knocked down and the eviction of a handful of small businesses operating there.5 Like many such plans, it has drawn the ire of reside local residents, who have formed Residents Against Walmart (RAW).  RAW has vowed ardent opposition to its implementation, and insists that the Walmart will erode the character of their neighborhood.6

In September 2007, the Greece Town Planning and Zoning Board approved the plan over these protestations, and the Greece Zoning Board of Appeals followed soon after.7 RAW has appealed a Supreme Court dismissal for lack of standing to the Appellate Division, which will hear argument on the case within the month.8

“For the purpose of promoting the health, safety, morals, or the general welfare of the community,” town boards have the authority to enact zoning regulations which regulate development within the town board’s jurisdiction.9 Though the boards can do this directly, more often town planning boards, panels of five or seven members who are appointed by the town board, promulgate zoning regulations.10 The town board, in turn, is a governing body whose existence is mandated by the New York Constitution to govern most municipal corporations.11 A town board consists of the town supervisor and council members who are elected by the residents of the given town.12 The town board also appoints three to five people to a zoning board of appeals (ZBA)13, which holds public hearings on challenges to decisions made by administrative officials with authority to enforce zoning laws and rules on their validity.14 However, ZBAs are not vested with the authority to review zoning regulations in and of themselves.15 Since the Northgate Plaza is zoned for the commercial use that Wal-Mart would make of it, RAW is forced into the awkward position of appealing Greece zoning officials’ interpretation of existing zoning laws.  This RAW can only do by showing that “commercial use” within the existing law does not contemplate or would be violated by the presence of a Wal-Mart Supercenter.

Within its sphere, the authority of a duly constituted ZBA is functionally plenary.16 An aggrieved party with standing may initiate an Article 78 proceeding against a ZBA determination in the relevant division of the Supreme Court17 and will be entitled to a hearing there18 on an expedited basis.19 As with any Article 78 proceeding, the initiating party is limited to specific grounds for appealing the ZBA’s determination.  It can allege only that 1) the official failed to perform a duty required by law, 2) that the official acted without jurisdiction, 3) that the official failed to follow proper procedure,  misinterpreted the law or acted capriciously, or 4) that the determination (if it was made upon a hearing) was not based on substantial evidence.20 This, coupled with a judicial culture deferential to the on-the-ground-decisions of local officials, means that RAW faces a very high hurdle on appeal, even if they manage to overturn the lower court’s finding that they altogether lacked standing to bring the proceeding in the first place.

The conflict between commercial and residential property use and the question of when the former infringes on the latter are both well tread in both our history and our jurisprudence.  What is particularly interesting here is the conflict between RAW and the Greece ZBA.

Being a democratic society, we all have a modicum of authority as voter/citizens over what happens at the Northgate Plaza.  Further, America’s adoption of the federalist democratic model as well as private property ownership, causes our authority over one another’s affairs and property to expand or contract, as a practical matter, relative to our proximity to or membership in different political or property owning communities. Residents of a particular political community have a heightened degree of authority over the affairs and property of those around them as a result of 1) their statutory and due process right to function within that community and 2) their right to reasonable use of their property.  In the present case, RAW has a particular authority over what happens at the Northgate Plaza because it exists in a political community in which they have rights as voters and because the proposed Walmart development implicates their right to reasonable use of their property.

Thus, RAW has two means by which it can impose its will on the Northgate Plaza in order to keep out the Walmart.  They have failed at the more effective of the two: electing like-minded city officials, successfully petitioning existing officials, or building a critical mass within Greece to oppose the Walmart.  RAW members had the chance to elect anti-Walmart town board members who would have appointed anti-Walmart planning board and ZBA members.  They had the chance to petition officials against the Walmart development or garner enough political support within the community to force office holders to reverse their pro-Walmart stance within their function as fiduciaries to the public trust.

The supreme court determination that RAW lacks standing speaks directly to the first source of their authority and marks RAW’s final terrain within it upon which they can possibly still stand.  Failure here forces them to retreat to their second, far less tenable source of authority over the Northgate Plaza as property owners whose rights to reasonable use of their property face adverse implication by the Walmart.

While this conceptualization of RAW’s predicament is useful insofar as it enables us to understand precisely what is at play in Greece, it is of little comfort to RAW which finds its options quickly evaporating in the sun of political and legal reality.  Nor can it be of much comfort that their story is likely to be of voter/citizen losers of the sort all political systems must necessarily create.

Lauren Prager & Eric Schillinger, editors.

________________________________________

1 Meaghan M. McDermott, Wal-Mart Challenge to Be Heard This Month, Democrat and Chronicle (Rochester), Jan. 4, 2009.

2 Id.

3 Northgate Plaza, http://absinthebleu.blogspot.com/2008/10/northgate-plaza.html (Oct. 22, 2008, 12:11 EST).

4 McDermott, supra note 1.

5 Id.

6 Id.

7 Id.

8 Id.

9 N.Y. Town Law § 261 (McKinney 2008).

10 Id. at § 271(a).

11 N.Y. Const. art. IX, § 1(a).

12 Id. at § 60.

13 Id. at § 267(2).

14 Id. at § 267-a.

15 Id.

16 See Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 263 (1984) (noting that the “town zoning board of appeals has been exclusively empowered to grant or deny zoning variances.” (emphasis added)).

17 N.Y.C.P.L.R. § 7804 (McKinney 2008).

18 N.Y. Town Law § 274-b (9).

19 Id. at § 267-c (4).

20 N.Y.C.P.L.R. § 7803(1)-(4).

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6 Comments

Filed under Constitutional Law, Land Use, Municipal Law, Separation of Powers

6 responses to “A Wal-Mart at the Northgate Plaza: Political Reality in a Nutshell

  1. Dave

    I would like to say that Northgate Plaza is a mess and that
    A Superwalmart WALMART would be the best thing for the Plaza because the Plaza is nothing but SORE who wants to go in there and look at the Strip and to see there is Nothing there .

    So KUDOS To Walmart for the VICTORY

  2. teresa

    I would like to say that an Ikea and a Trader Joe’s would have been a much better choice and would have brought quality merchandise, better jobs, and commerce from miles around, since neither store exists in upstate NY. Walmart will bring trash to the community.

  3. pat

    teresa, Ikea – quality merchandise, ………seriously? Wow, hate to see what you think is junk. It would be nice to have an Ikea (cheap merchandise always has some purpose), a Trader Joe’s would be nicer though, but I am sure their research shows it is not a good location for them. They are catering to the area, Walmart fits. I would be more concerned about traffic than anything. At least the draw will help local vendors. Don’t you see that retail and industry are necessary for jobs and supplementing taxes. Unless you want your high taxes to go even higher when all those stores keep flocking away from the old Northgate Plaza and other areas.

  4. teresa

    My Ikea merchandise looks terrific and has withstood years of constant use. I have a computer desk and hutch: $99; a wardrobe with a full-length mirror, 4 large drawers, a horizontal bar for hanging shirts and an upper storage shelf: $300; A kitchen unit with three big drawers, shelving space and a mighty countertop: $600 – and many more brilliantly designed items that have helped me to store my belongs in a smart and elegant fashion. An Ikea would bring tremendous commerce to Greece. There nearest one is in Toronto.
    And, not only wealthy people shop at Trader Joes. Other than Laurie’s and the healthfood section at Wegmans (both of which are overpriced) there is no place to buy healthy, minimally processed yet convenient groceries. My idea is terrific. Wish I were a multimillionaire or wish I knew a smart one.

  5. Gary Jablonski

    While I guess I have been out of the loop on the Northgate plans,I have to feel this is yet another start/stop move on the planning boards plans.Walmart bought properties along West Ridge Road and knocked down some of the homes leaving one standing and one building that used to be a invisible fence business.In doing so those properties are left with what was the driveways for the houses and over growth.What a eye sore it is.I my mind it is still another example of a planning board who’s history is to approve new builds while there is old buildings/properties left vacant.True enough they are allowing Northgate’s rebuild,but what about the blight left behind on West Ridge Road??.Surely that is not in the best interest of the community.

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