August 11, 2007


A day after Cortlandville OKs Wal-Mart Supercenter aquifer permit —

State court dismisses CAPE lawsuit

Staff Reporter

CORTLANDVILLE — An Article 78 lawsuit filed against the town, its Town Board and Wal-Mart Stores East LLC was dismissed Friday, just one day after the board approved the big box store chain’s Aquifer Protection Permit for a proposed Wal-Mart Supercenter on Route 13.
The offices of town attorney John Folmer and town supervisor Dick Tupper confirmed the dismissal, as did the plaintiff’s attorney, but details were unavailable Friday, and attorneys for all the parties could not be reached.
The decision had not been filed in the Cortland County Clerk’s Office as of Friday afternoon, and the Broome County Clerk’s Office was unavailable.
Mindy Zoghlin, of Rochester-based Bansbach, Zoghlin & Wahl, filed the lawsuit in April on behalf of Citizens For Aquifer Protection and Employment, or CAPE.
The lawsuit sought to halt the development of the 205,000-square-foot Supercenter and revisit the State Environmental Quality Review process that lasted more than a year and a half and concluded in November.
Clearly upset Friday night, CAPE Treasurer Jamie Dangler said she was unable to offer substantive comment until the grounds for dismissal were made clear.
Further appeals would depend on the availability of funds, she said.
Town Board member Ted Testa said he was “thrilled” to learn of the lawsuit’s dismissal Friday afternoon and that the board had believed it had a “very, very, very strong case” from Day One, attributing the town’s success to the representation of Folmer and Robert Germain of the Syracuse-based Germain & Germain law firm.
At the Thursday night public hearing, members of the public condemned the Town Board for not having sufficiently guaranteed the safety of the area’s sole-source aquifer.
“After all the criticism that we had taken over this project, the judge handling the case told us we were right,” Testa said.
According to an e-mail from Wal-Mart Public Affairs Senior Manager Phillip Serghini sent Wednesday, the big box store chain was awaiting a ruling on the pending lawsuit before soliciting a contractor and beginning construction, which should take about a year.
On June 22, Sixth Judicial District Supreme Court Judge Ferris Lebous heard arguments from the attorneys regarding motions to dismiss the Article 78 lawsuit based on the legal standing of the plaintiffs and also went over some of the particulars of the case.
CAPE contends that the board’s approval of the State Environmental Quality Review process was flawed; that the board granted a Planned Unit Development zoning designation based on insufficient information; and that the Town Board usurped some of the powers granted to the town Planning Board by both town law and state law by approving the Planned Unit Development and an associated preliminary site plan.
Both Wal-Mart and the town filed motions to dismiss, alleging CAPE did not have standing in the matter, and therefore no right to sue.
Arguing on behalf of Wal-Mart, Syracuse-based attorney Andrew Leja, of the Hiscock & Barclay law firm, said that in order for an organization like CAPE to have legal standing, the petitioner has to demonstrate an injury resulting from an action.
Also, Leja said at least one member of CAPE has to have legal standing to allow the group to file the lawsuit.
In addition to Dangler, CAPE members Mary A. Miner and Marie A. Kautz, both of Walden Oaks Boulevard in Cortlandville, are listed as petitioners in the lawsuit.
Leja argued that since both women live about a third of a mile from the proposed Wal-Mart location, they likely would not have sufficient proximity to the store to fulfill the requirements that determine standing, which include being the victim of an injury that is more significant than that incurred by any other town resident.
Zoghlin argued that the store’s potential negative impact on the sole-source aquifer for the Cortland area is important enough to warrant CAPE’s standing in the case, and that the town, in the final environmental impact statement, acknowledged that Kautz and Miner would be adversely impacted by the Supercenter’s development. She said the town did not go far enough in identifying ways to mitigate the impacts of the Supercenter during the SEQR process.