G’town group takes dollar store plan to court

GERMANTOWN—After two years of process, on July 26, the town Planning Board approved a Dollar General retail store on Route 9G, just north of County Route 8 / Main Street.

On August 22, several town residents filed a legal challenge called an Article 78 Proceeding in state Supreme Court against four defendants: the Planning Board; Primax Properties, developer of the Dollar General property; and Paul D’Sousa and Henrietta D’Sousa, owners of the property to be subdivided for the Dollar General store.

The petitioners filing the action are: Arthur M. Cady, Elizabeth M. Cawley, Carole Neville, Karen Targove, Angela Olszewski, Douglas Trapp and William Kimmel. They are represented by Warren S. Replansky.

In New York State, an Article 78 Proceeding appeals a decision of a state or local agency to the courts and is generally filed in state Supreme Court. By rotation, Acting Rensselaer County Supreme Court Judge Henry Zwack will preside over this case.

The Memorandum of Law in support of the case outlines five reasons for the case. “Nimbyism” is mentioned early on, in the Statement of Facts: “The considerable controversy and concern about this project stemmed, not from typical concerns of ‘nimbyism’ but, instead, were generated by the fact that the property on which this Dollar General Store was to be sited is presently, for the most part, undeveloped and provides the Germantown community with one of the most prominent, unobstructed view of the Hudson River Corridor and the Catskill Mountains.”

The petitioners’ say that town zoning applies a Scenic View Overlay to this area, with special zoning restrictions.

Point One of the Memorandum: having designated itself as lead agency for the State Environmental Quality Review (SEQR), the Planning Board, after more than a year of review and process, violated its duties as lead agency by delegating the responsibilities for preparation of the Final Environmental Impact Statement (FEIS) and Findings Statement to the applicant, Primax Properties, and the applicant’s consultants.

SEQR regulations say that the lead agency is responsible for the preparation of the FEIS. The applicant may prepare the FEIS in a “preliminary” fashion at the request of the Planning Board, but it is that board’s responsibility as lead agency to review the FEIS carefully and determine its accuracy and adequacy. The Memorandum says the Planning Board did not do that.

Point Two: “The Planning Board failed to take a ‘hard look’ at the identified significant environmental impacts of the project.” These impacts begin with consistency of the project with the town’s comprehensive plan and zoning law and continue with the inadequacy of the Visual Impact Analysis and Community Character Analysis provided by the applicant as part of SEQR and end with the failure to evaluate properly alternatives to the proposed project.

Point Three: “The Findings Statement prepared by the applicant, and accepted by the Planning Board without substantial change was grossly inadequate.”

Point Four: “The project, as proposed, violates the provisions of the town’s zoning law.” Germantown’s zoning law does not allow building widths in excess of 50 feet and black windows. The Dollar General store has been approved at 71 feet wide, with black windows.

Planning Board minutes report discussions concerning the need for the Zoning Board of Appeals to rule on these aspects of the store, since the ZBA interprets town zoning, not the Planning Board. However, the Planning Board never referred the matter either to the ZBA or the Zoning Enforcement Officer.

Point Five: Any action taken by the Planning Board at its February 10, 2018 “workshop meeting” must be nullified due to the board’s failure to comply with the state’s Open Meetings Law. The board did not provide notice of what it called a workshop meeting on February 10, or meeting minutes. The board did take action at that meeting, however, so the meeting should have been “noticed” and had minutes.

The “return date” on the petition is Friday, October 12, Mr. Replansky said Tuesday, and the defendants need to “file their papers” before that.

In a statement emailed to The Columbia Paper Wednesday, September 12, Jacob F. Lamme, an attorney representing Primax, wrote: “After nearly four years, Primax’s Dollar General project is finally moving forward, with the Town and many of its residents in favor of the project.  Unfortunately, there is a vocal minority of residents who saw fit to waste taxpayer dollars by challenging the Planning Board’s approval in court, despite the project’s full compliance with law. The Town and Primax will defend the approval and respond to the Article 78 petition in due course.”

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