BALLSTON SPA – Story updated June 24 at 2:53 p.m. A Walmart spokesman said the retailer has been advised by the Town of Ballston that the conditions of the PUDD have been met and plans are continuing.
Smart Growth Ballston, a community group rallying against the proposed Walmart development in Ballston Spa, says the clock has run out on the project.
The attorney representing SGB has advised the Ballston Town Board that the Planned Unit Development District (PUDD) created in May 2011 for the development of a Walmart store at the intersection of Routes 50 and 67 has expired, and that the developer no longer has any of the needed approvals to proceed with the project.
In a letter delivered to Town Supervisor Patrick Ziegler, attorney Jeffrey Baker of Young, Sommer, LLC, an Albany-based law firm specializing in land-use and environmental law, advised the Town “[The] Planning Board is without jurisdiction to review a site plan for the proposed Walmart development,” in reference to the law adopted by the Town in 2011, which established a PUDD for retail and office development.
In the letter, Baker noted that the law required that development must be started within two years from the date the law was passed, and if that substantial progress was not made, the law is to be deemed automatically revoked and void.
“Now it is too late,” said Baker. “By its own terms, the PUDD has expired.”
The letter goes on to state that, “Neither the Town nor its residents should waste the time, effort and expense in renewing a project that relies upon an expired zoning designation. We urge the Town to avoid unnecessary litigation and acknowledge that the Rossi PUDD has expired and to cease consideration of the application.”
The main basis for Baker’s argument to stop the project, is that the PUDD that was approved in May 2011 has expired and there is no record of any extension being granted nor is there an official response from the Town of Ballston.
However, in a letter obtained by The Ballston Journal, the Town of Ballston did issue a letter to Frank S. Rossi II regarding the PUDD, dated September 11, 2012.
The letter, written by Building Inspector Thomas Johnson, advises the Rossi family, “Section 7 of the PUDD ordinance requires ‘significant or substantial progress’ takes place within 24 months of the approval of the PUDD. The PUDD was approved on May 31, 2011 and substantial progress has taken place.”
The letter goes on to read that the work performed on the site, namely the wetland mitigation and sewer installation constitutes substantial progress.
Johnson goes on to write, “[…] the Town agrees that typical periods of time that site construction does not take place due to contract negotiations, site inspections and project specific site approvals, would not constitute undue interruptions. The 24 month period set forth in the PUDD legislation is controlling. The Town agrees that substantial progress has been demonstrated within that time period.”
Supervisor Ziegler said he received the letter from Smart Growth Ballston’s legal team and has forwarded it on to James Walsh, Town Attorney and Peter Riley, Ballston Planning Board Attorney.
“I need to hear more from the attorneys,” said Ziegler. “As elected officials, we need to do our due diligence and let the facts speak for themselves.”
As for Walmart, a spokesman for the big box retailer said plans for the store are continuing.
“We expect to move forward with the Ballston project,” said Director of Communications for Walmart, Bill Wertz. “We have been advised by the Town of Ballston that the work performed on the site to date, including wetland mitigation and sewer installation constitutes ‘significant progress,’ and, therefore, the conditions of the Planned Unit Development District (PUDD) have been met. Our new store will bring jobs and new affordable shopping opportunities to the Ballston area and has the support of many in the community.”