The town of Ballston Zoning Board of Appeals is weighing whether the zoning that could allow a Wal-Mart store has expired due to lack of progress by the developer.
The board took no action after hearing legal arguments Wednesday, but will probably rule at its April 1 meeting, said town planning and zoning attorney Peter Reilly.
The citizen group Smart Growth Ballston, which opposes the Wal-Mart proposal, is arguing the 2011 approval of the Rossi Development planned development district has expired for lack of progress.
The legislation approved by the Town Board states the planned development district expires in two years if substantial progress hasn’t been made.
Town Building Inspector Thomas Johnson rejected that argument last fall, finding various activities constituted progress, even though construction hasn’t started. Smart Growth’s appeal of his decision is what’s now before the ZBA. The ZBA’s decision could be challenged in court.
“As a matter of law, it is revoked and is not valid anymore,” said Jeffrey Baker, an attorney for Smart Growth Ballston. “These are all delays that are under the applicant’s control.”
Attorneys for Rossi Development and Wal-Mart argued there’s been progress in contract negotiations, site studies and town reviews, if not construction.
“From Wal-Mart’s perspective … there’s been an enormous amount of work done, and there’s been no undue delays,” said Leslie Morrow, an attorney for Wal-Mart, which applied to build at the site last April.
Frank Rossi Jr., representing Rossi Development, said courts have ruled “substantial progress” doesn’t require physical construction, and engineering plans had to be revised after Wal-Mart agreed to come to the site.
The progress Johnson cited included development of a stormwater management plan and construction of a sewer line.
The Town Board PDD approval allowed up to 137,000 square feet of retail space, though it wasn’t known that Wal-Mart wanted to come to the site until last April. The site is at the corner of state routes 9 and 67, just south of the village of Ballston Spa.
The corporate retail giant’s application has revived much of the same public opposition that occurred when Wal-Mart proposed a larger store on the same site in 2004. That application was later withdrawn.
While the ZBA reviews the case, the town Planning Board is continuing to assess whether the environmental impacts of the Wal-Mart have been adequately studied.