Town of Clifton Park sued over Market 32 project

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BY Molly Congdon
CLIFTON PARK — Clifton Park is standing by its approval of changes that will allow a Route 146 strip mall to be overhauled and a Market 32 supermarket to be built there while the owners of a nearby strip mall are continuing their legal efforts to block the project.

On July 21, the Clifton Park Zoning Board of Appeals approved 16 variances, the first step for property owner WRJ Associates LLC to gain town approval to redesign its shopping center at the intersection of Route 146 and Vischer Ferry Road. On Tuesday, Sept. 15, prompted by the legal challenge, the ZBA upheld the variances it had approved two months earlier, explained why it had made that decision in the first place and then — after another vote — re-approved those variances.

On Aug. 21, Whitney Lane Holdings LLC, the owner of North Country Commons, located across Vischer Ferry Road from the other strip mall, filed a lawsuit in state Supreme Court in Saratoga County against the ZBA over the zoning variances.

“We believe that the rules should apply to everybody equally,” Andrew Brick, attorney for Whitney Lane Holdings LLC, said. “There are specific requirements for state law in order to obtain a variance and they apply to everybody, and they should be applied to everybody equally. It’s an issue of fairness.”

The town of Clifton Park doesn’t see any issues of equality. “I’m not completely sure why Whitney Lane is challenging the variances; they own and manage the adjacent shopping center across Vischer Ferry Road, and while it is not uncommon for neighbors to be the ones challenging a determination that allows an expansion or extension of a use, it is somewhat rare in a commercial setting,” Clifton Park town attorney Tom McCarthy said.

“Because of the large divider of Vischer Ferry Road, we can’t discern any actual impacts to them. There was evidence in the record that they had wanted Price Chopper to go over there to their shopping center, and Tuesday night the Nigro representative said he had gotten a call from their manager after they had come out in opposition to the project and said that if Price Chopper would come across the street to them they would ‘drop their opposition to the project.’ The rep from Whitney alleged to have made that call denied it, so we don’t know the motivation.”

He continued: “The argument was that it is not justified and there were alternatives, such as tearing down the entire center and starting from scratch, but we couldn’t find an argument in there which would mitigate any impact to them. Tearing down the whole center and displacing all the employees and suspending the pharmacy, grocery and banking service for an extended time was rejected by the ZBA as a viable alternative. But again, say they did that, why would that benefit Whitney?”

Whitney Lane Holdings LLC felt the ZBA members didn’t sufficiently detail why they cast their votes. “Our position is that the Zoning Board didn’t properly apply the state law test required to grant variances,” Brick said. “We originally filed a lawsuit challenging the Zoning Board’s actions back in August; they apparently agreed with our position that they didn’t properly explain why they reached the decision that they did because they then scheduled a rehearing for [last week] and went back through the variances and explained their rationale. We believe that the variances — even though they went back and had a subsequent rehearing — their analysis was still deficient as a matter of law.”

McCarthy explained the logic and said it justifies approval of the variances. “This is the crux of it,” McCarthy said: “While the setback variances and green-space variances, taken together, were substantial, the site is acknowledged to be worn and tired now. It was built before modern stormwater regulations, and there is virtually no treatment of runoff before it goes into the Dwaas Kill now, and they aren’t required to modernize unless and until there is a project.”

He continued: “This project will result in stormwater retention and treatment up to 2015-16 standards, and although it will tighten internal traffic and parking, it is felt that it will better organize those two things. Modern landscaping will improve aesthetics. Modern architecture will improve aesthetics. So, overall, ZBA felt that, although setbacks will be less than code, and there will be less green space than the norm for new projects, they were constrained by the fact that it is an existing site with existing commercial leases, and if this is what it took to get all the tenants on board, and willing to amend their leases, then it was determined that the variances were justified by the prospect of modern improvements to landscaping, stormwater, traffic and architecture.”

Once the town voted to grant most of the variances on July 21, it immediately went into defense mode. “I sat with ZBA Tuesday night as counsel, as their regular attorney was on vacation,” McCarthy said. “It is my opinion that the variances are legally justifiable and they will ultimately be upheld.”

The plaintiffs disagree.

“The next step is that we will amend our petition papers, the town will be given a time frame to respond and then it will eventually end up before a judge at Saratoga County Supreme Court to make a determination,” Brick said.

“We expect Whitney to file an amended petition under Article 78 to encompass activity since their original filing,” McCarthy said.

“I expect that by the end of the month, and I expect to answer the amended petition by the end of October … usually get a decision about 60 days after that.”