GERMANTOWN–In a January 29, 2019 ruling Acting Supreme Court Justice Henry F. Zwack vacated the town Planning Board’s approval for a Dollar General store on Route 9G. By order of the judge, the site plan for the store must now go before the town Zoning Board of Appeals, which will determine whether the project complies with town zoning laws.
The case was originally brought by seven Germantown residents: Carol Neville, Karen Targrove, Angela Olszewski, Douglas Trapp, William Kimmel, Arthur Cady and Elizabeth Cawley. They filed it as an Article 78 action, asking the court to overrule the Planning Board’s approval of the application by Primax Properties, LLC to build the store.
The judge found three of the petitioners lacked standing to participate in the case and two others withdrew, but Ms. Neville and Mr. Cady were found to have a standing by way of owning property adjacent to the proposed Dollar General store location, 4301 Route 9G, just north of the intersection with county Route 8.
Four years ago, in January 2015, Primax Properties expressed its interest in building the Dollar General Store on a 1.3-acre lot that would be created by subdividing an existing 6-acre parcel owned by Paul and Henrietta D’Sousa.
The proposed store is 134-feet deep and 71-feet wide. The proposed lot is in Germantown’s Hamlet Commercial Zone, where a retail store is a permitted use. It is also in the town’s Scenic Viewshed Overlay District.
The proposal has gone through modifications since it was introduced. It has also generated support and opposition in the community as it has moved through the review process, with the Planning Board as lead agency.
The plaintiffs in the Article 78 petition filed 12 causes of action against the Planning Board, Primax and the D’Sousas, with a focus on the actions of the board. They included charges that the Planning Board had violated the State Environmental Quality Review Act by not identifying “potential adverse impacts of the project,” by delegating the board’s authority to Primax to prepare a Findings Statement for the project and by failing to refer the project to the town Zoning Board of Appeals.
In the 20-page decision Justice Zwack spends nearly 7 pages on the timeline of the Primax proposal and the determination of standing. But the focus of his decision involves the 71-foot width of the proposed store. The town zoning law calls for a 50-foot limit.
The judge writes: “…there is compelling merit in petitioners’ argument that the Planning Board improperly interpreted the Town of Germantown Zoning Laws when it determined that the 71 foot façade of the Dollar Store complied with its Zoning Law.”
The judge also dismisses the respondents’ argument that the plaintiffs “didn’t exhaust their administrative remedies” on the 71-foot facade issue, calling it “simply without merit.”
The decision goes on to cite examples in the record of the case when the facade limit was raised. The town engineer addressed the matter and Planning Board member Margaret della Cioppa voiced her concern about the façade and requested it be referred to the Zoning Board. Her request was never processed.
In his conclusion Justice Zwack wrote: “the Planning Board had no authority to interpret the Town’s Zoning Law–which could only be done by the Zoning Board of Appeals.”
In granting the Article 78 petition, the Court Order vacates the resolution adopted by the Planning Board July 26, 2018 that approved the site plan for the Family Dollar store. The order now goes to the Zoning Board of Appeals for a decision on whether to grant a variance or require a facade no wider than 50 feet.
Attorneys for the petitioners, for the Town of Germantown Planning Board and for Primax Properties, LLC all declined to comment on the decision, saying that the case is in active litigation.