Opponents of a proposed Walmart store in Ballston say the zoning approval that appears to allow the big-box store has expired.
It is a new argument from the opposition, which has rallied since the Walmart was proposed at the Rossi Development site off Route 50 south of Ballston Spa in April.
The developer says the approval remains good.
In a letter sent to town officials Friday, the citizen opposition group Smart Growth Ballston said the planned unit development district zoning for the land expired 24 months after the Town Board approved it, or about June 1, 2013, because of lack of progress by the developer.
The legislation approved by the Town Board on May 31, 2011, says the zoning expires in 24 months if “substantial progress” hasn’t been made toward construction.
Opponents contend the developer can’t meet that standard.
“We now conclude, categorically, that the Rossi PUDD expired as a matter of law on or about June 1, 2013,” wrote Jeffrey S. Baker of Albany, an attorney for the group. “Consequently the zoning and land use limitations for the subject real estate included in that PUDD do not and cannot authorize any large box-retail development.”
On Monday, Town Attorney James Walsh said the matter is under review, and could be discussed by the Ballston Town Board in executive session at its monthly agenda meeting tonight.
Tom Savino, a commercial real estate broker representing the project, said he doesn’t think there’s any basis for opponents’ claims of lack of progress.
“We don’t feel we have an issue with that,” Savino said Monday. “There has been substantial progress on this.”
Rossi Development has brought some water, sewer and road infrastructure to the site, but much of that work occurred before 2011.
A 137,000-square-foot Walmart store with grocery is being proposed on the same site about a mile south of Ballston Spa where a larger Walmart was proposed a decade ago, sparking community-wide debate.
The new proposal has ignited similar feelings, with lawn signs both for and against the proposal popping up throughout the community.
The proposal appears to comply with the 2011 PUDD, which means the town Planning Board could approve with only a site plan review. Based on that assumption, the Planning Board is in the process of starting an environmental impact review.
If the PUDD has in fact expired, the land would return to its previous zoning, which called for mixed commercial-residential use, with no single store exceeding 90,000 square feet.
Ben Baskin, president of Smart Growth Ballston, said the organization had been aware of the expiration date written into the legislation, but wanted a lawyer’s opinion before sending a letter to the town.
He said the Walmart would have a far greater impact on the community than what most people thought was approved in 2011 — an anchor store with smaller shops around it totaling 137,000 square foot. The legislation, however, doesn’t prevent it from being all in one building.
“It’s really a Town Board level conversation, going beyond what the Planning Board should do,” Baskin said.