Category Archives: PDD Law

Memo to the Livingston County Planning Board

RE: Gateway Town Center proposal
FROM: Bill Lofquist and Corrin Strong,
for Please Don’t Destroy Geneseo
DATE: June 11, 2008

The Gateway Town Center (GTC) project, a large-scale retail development proposed for the Gateway District in the Town of Geneseo, is in direct conflict with Town of Geneseo planning and zoning for the Gateway District, the County’s DAN Plan, and state and local laws and policies enacted to fund construction of Volunteer Road. As a result, and for the reasons discussed below, we believe this proposal must be rejected. In the alternative, we propose mitigations that would alleviate some of the worst conflicts between this proposal and existing planning.

The Gateway District was created by a series of zoning laws enacted by the Town of Geneseo is the mid-1990s and by the construction of Volunteer Road several years later. That zoning, which was drafted with the professional assistance of Phoenix Associates, now Clark Patterson, is explicit in its prohibition of retail development that faces or takes access from Route 20A. That zoning also exhibits a strong preference for non-retail development, by imposing strict building size limits and other limits only on retail businesses.

The written record created by the Town Planning Board in drafting the existing zoning makes it clear that these restrictions were intended to prevent the development of another large-scale, traffic-intensive retail plaza across the street from the Wegman’s/Wal-Mart plaza and to prevent retail sprawl along the frontage of 20A. Yet, this is precisely the type of development represented by GTC.

In reviewing this zoning at the time of its enactment, the County Planning Board voiced strong support for the Town’s efforts. In particular, the County noted that, like the proposed zoning, “the DAN Plan also discourages ‘strip development.’” Continuing, the Staff Report noted that “the general purpose of the [Gateway] District is to control development in this area of the Town and to prevent development directly along Route 20A and Lima Road in order to reduce potentially significant negative impacts such as traffic congestion.”

In addition to enacting the Gateway Overlay District zoning, the Town pursued county funding to support the construction of Volunteer Road. The clear intention of the construction of this road was to facilitate development of the Gateway for non-retail development and that this road serve as the primary or even exclusive access point to development in the Gateway.

Funds for the construction of Volunteer Road were provided in part by the Livingston County Infrastructure Capital Program, which was created pursuant to state law (Chapter 644 of the Laws of the State of New York) that prohibited the use of program funds to support retail development. The Livingston County guidelines for that program reiterated that prohibition, stating that projects funded by the program “must be in direct and bonafide support of an economic development objective. Such projects include manufacturing, research, distribution and corporate office developments. Projects proposed in support of housing, commercial or speculative developments will not be considered.”

The Empire Zone established in this area in 2005 represents an additional level of Town, County and State planning to support non-retail development in the Gateway District.

In direct conflict with this planning and zoning, with State law and local policies, and with the sound economic development and traffic and sprawl control principles they represent, Newman Development Group has proposed a large-scale retail proposal along Route 20A and taking direct access from Route 20A. Due to these many conflicts, we believe the GTC proposal is not only inappropriate for this site but is impermissible.

Further, we believe the use of the Town’s Planned Development District (PDD) law to circumvent these conflicts results in an additional legal obstacle for this proposal. The state law authorizing PDD laws is explicit that such laws must be used “in furtherance of” local planning and zoning. For the reasons outlined above, the GTC proposal is in direct conflict with such planning and zoning.

The Town Planning Board’s SEQR Finding that the proposed Lowe’s building be oriented toward Volunteer Road and be slightly smaller than its originally proposed size represent their recognition of the requirements of the zoning for the Gateway. However, we do not believe these modifications go far enough to protect the integrity of the existing planning and zoning.

Of particular concern is the access road to GTC proposed for Route 20A at Morganview Drive, which is also prohibited under the underlying zoning. This road will result in yet another unsignalized access point to 20A, characterized by long delays and dangerous left turns. More troubling, this access point will serve to promote additional retail sprawl fronting 20A to the east.

The developer’s own traffic study by Fisher Associates indicates that, if this access is built, those seeking to make a left hand turn off Morganview Road will experience an increase in their average wait time during peak hours from the current 51 seconds to as much as 451 seconds!

In addition, the town’s traffic consultant, Bill Holtoff of Stantec, has repeatedly advised the board that it is unlikely that the Morganview intersection will meet state DOT warrants for installation of a traffic light at any time in the foreseeable future. We believe that to go forward with such an entrance in the face of this record would be irresponsible.

Accordingly we request that the County Planning Board adopt a recommendation that this access point be removed or be limited to delivery and emergency vehicles only.

The record in this matter, including the DEIS, the FEIS, and the many memos that we have submitted over the past two years provides extensive documentation for every statement that we have made in this memo. Unfortunately, the record also contains many inaccurate statements by both the developers and project supporters which seek to distort the nature of the underlying planning and zoning. Since the record is so voluminous and confusing, we stand ready to help clarify any point or answer any question either by e-mail, phone or at your meeting tomorrow.

For PDDG

Bill Lofquist
Corrin Strong

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To the Table, Reluctantly

I don’t like the Gateway Town Center proposal. I don’t like anything about it.

I don’t think we need another big box and we surely don’t need another pharmacy. I don’t like the effects a Lowe’s will have on locally-owned hardware, lumber, appliance, kitchen and bath, and garden stores throughout the county. I am concerned that even more retail for Geneseo will mean even less business for every other surrounding burgh.

I don’t like the effects of another huge retail plaza on already congested roads. 20A is already overcapacity, as indicated by all the Geneseoans who refuse to use it. More traffic and more sprawl will do more damage to our community’s character and our Historic Landmark status.

I don’t think large-scale retail in small towns and rural counties is viable in the long term. Rising fuel prices and the slowly dawning reality that a nation cannot continually spend more than it earns will soon leave us with far more retail space that we can fill.

I particularly don’t like the tactics that have been used by Newman and others to see this project built. The Planned Development District (PDD) law was enacted to subvert local planning and zoning, no two ways about it. The Gateway was never intended for large-scale retail development. Good people on the defunct master plan committee, the Planning Board, and in the public have been treated badly due to their opposition to this project.

For all these reasons and others, I’d like nothing more than for Newman to pack it up and leave. I believe that’s what’s best for the community and I believe that’s what the law requires.

For all these reasons and others, it’s hard for me to – I’m having troubling finding and typing the words – say that I support the Planning Board’s efforts to find a compromise.

Their effort to minimize the worst effects of the proposed Lowe’s by requiring a smaller building facing Volunteer Road with only limited access to 20A is noble. They have breathed some life back into the zoning for the Gateway. They have tried to use the PDD law as it should be used – to allow “flexibility” in development – rather than to eviscerate local zoning. They have tried to limit the sprawl to the east by directing development down Volunteer Road.

In the process, they have helped to bring this matter closer to a much-needed conclusion and to avoid protracted litigation.

I have my concerns with their proposed compromise. I think the proposed Lowe’s should be required to be the 94,000 square foot model that Lowe’s advertises as its small town model. (It’s crazy how what was once huge – the size of our first Wal-Mart – is now “small”.) I think every effort should be made to ensure that the 20A access being permitted for trucks and emergency vehicles doesn’t become the entrance to the next big plaza to the east.

Most of all, I think the Planning Board and the Town Board must resist any effort to undo the compromise that has been reached.

Finally, I also think it would be a good idea for the Planning Board to direct the Town Board to scrap the PDD law, or at least modify it to limit how much proposals can deviate from the existing zoning. Let this be the last time the community goes through such an ordeal.

Decision Day Approaches

The Town Planning Board’s recent determination that Newman Development has provided all the information it needs to evaluate the impacts of Newman’s big box plans represents a big step toward the biggest step in this long saga. Now the board must decide whether those impacts – on traffic, on community character, and on growth – are bearable in a community already strained by retail sprawl.

Should the Board decide Newman’s plans fit into Geneseo’s plans, a huge hurdle will have been cleared. There will still remain other hurdles. The County Planning Board will need to give its approval, the Town Board will need to vote to rezone the property in question, and the Town Planning Board will need to work out the details of the site plan. The available record indicates these decisions are but formalities; speed bumps in the path of Newman’s bulldozer.

Now, at long last, is the time for the crucial decision to be made.

We at PDDG are busy preparing a memo to the Planning Board urging them to reject Newman’s plans. That document, which we will post online on The PDDG File when it is complete, will make three major arguments: that Newman’s plans are in impermissible conflict with Geneseo’s plans, that another big box will strain our infrastructure and cement our status as Genrietta, and that the legal requirements for making a final decision on Newman’s project have not been met due to Newman’s intransigence and the Board’s lack of proper oversight.

At its meeting on April 28 and perhaps at a subsequent meeting or two, the Board will take up these issues. We’re not particularly hopeful of the outcome, despite our confidence in our arguments.

Since helping to persuade the Board eighteen months ago that Newman’s plans required the completion of the environmental review process that is now being completed, we have had a harder time persuading the Board that Newman’s plans are fatally flawed.

Where we see Genrietta, a community that has lost its soul and its character, the Board seems to see just another big box. Where we see traffic gridlock, the Board seems to see just a few more cars. Where we see careful planning and zoning designed to prevent exactly what Newman proposes, the Board seems to see the PDD law as a get out of jail free card. Where we see Newman flouting its legal obligations, the Board seems to see business as usual.

Perhaps our standards are too high. Maybe community self-determination must bow to the almighty tax dollar. Maybe you can’t really say no to “progress,” however ugly it may appear. Maybe the procedural train wreck that has been occurring ever since Newman helped us write the PDD law they now seek to exploit is simply par for the development course.

We’ll soon see what the Planning Board decides. There is some room for optimism. Statements from Planning Board members at their April 7 meeting showed some reservations about Newman’s plans.

If the Board sides with Newman, we’ll review our legal options. That’s not intended as a threat. Rather, it represents a recognition of our core belief that Newman’s plans are for Newman’s benefit and are contrary to Geneseo’s laws and Geneseo’s interests.

In the end, the truth of that proposition will have to be determined.

Painted Into a Corner

Those of us who might be referred to as “Newman watchers,” who have a particular interest in trying to understand and anticipate Newman Development Group’s actions and strategies in seeking approval for its Big Box plans, find these slow periods to be challenging.

What’s going on? Whose move is it, Newman’s or the Town’s? What’s next? We submit Freedom of Information Law (FOIL) requests, hoping they’ll turn up a clue. Nothing. We pore over Newman’s submissions and the Town’s responses, trying to divine the future.

Is it the quiet before the storm, as Newman prepares to push for final approvals? Is it an indication of some problems that the Planning Board has identified with Newman’s application? Is it time spent by Newman or Lowe’s considering its options in a rapidly deteriorating housing and home improvement economy? Or is it simply a normal part of a long and deliberative process, absent any larger significance?

Those among us who believe that ultimate approval is inevitable and appropriate, whom I refer to as the “build yesterday” crowd, wonder what the fuss is about. For them, time is money and opportunity lost. Fire up the bulldozers, cut the ribbon, and let the traffic, bargains, and tax dollars flow.

Those who believe that Newman’s Big Box will pave the way for more Big Boxes and more traffic than little Geneseo can handle, who fear that a whole range of local businesses may succumb to a behemoth Lowe’s, and who don’t think it’s good for us – as shoppers, citizens, taxpayers, residents of our separate towns and villages, and residents of the county – to locate all our businesses in one place, favor delay. Time is opportunity gained, opportunity to preserve the status quo a little longer, to hope for a change of plans by Newman or Lowe’s or a change of heart by local decision makers.

Though I certainly support this second group, and hope I have contributed to their cause, there is a third group (of which I may be the only member) who are eager to move this matter to its ultimate conclusion. “We” believe that Newman’s plans must ultimately fail as a result of the many flaws and problems they contain.

Taking my clues from the back and forth efforts of Newman and the Town to fashion a complete and legally adequate Final Environmental Impact Statement (FEIS), here is what I think is going on.

The Town Planning Board completed its Scope, its recipe for the FEIS that Newman must prepare, more than a year ago. Since then, Newman has submitted a Draft Environmental Impact Statement, which the Town agonized over before deciding it was complete but inadequate. The Town then provided Newman guidelines for a better FEIS. Newman has now submitted that FEIS.

My admittedly biased reading of that document leads me to conclude that it is incomplete, inadequate, intentionally unclear, and even dishonest. The Town’s initial and less than enthusiastic response to the FEIS, in which it indicated that it will need some time before it is ready to discuss it publicly and that it will be providing a preliminary written response to Newman, indicates that it has its own concerns.

The difficulty in producing a better FEIS, I believe, is that as this long process gets closer to the end, the many flaws in Newman’s proposal accumulate.

Up to this point, it has been possible to defer for another day the fundamental conflicts between Newman’s proposal and the Town’s long established plans for the Gateway. It has been possible to believe that 20A would somehow expand to accommodate all comers. It has been possible to view the PDD law as a magic wand that would make all things possible. It has been possible to believe that the good comes without the bad, that the benefit has no cost, that growth has no limits.

In a thorough process, and the State Environmental Quality Review Act (SEQRA) is nothing if not thorough, problems may be deferred but not denied. In the end, the questions posed by the issues deferred must be answered.

As we approach that end, Newman is finding it difficult to produce written justifications for its previous assurances. The Town Planning Board is finding it harder to reconcile this huge proposal to the state and local laws it is charged with enforcing.

Maybe there’s a way out, a way to give Newman what it wants within the limits of state and local law. I don’t see it, though, and I think Newman is spending a lot of time looking for it.

A race to the statute books?

[This is the last in my 4-part series of articles examining the history of the Gateway District and the implications of that history for our current Big Box battle.]

If the Geneseo Town Planning Board and Geneseo Town Board approve Newman Development Group’s Big Box plans, the 25 acre parcel at the northeast corner of 20A and Volunteer Road will be rezoned as a Planned Development District.

At that point, the legal question as to whether that rezoning is permissible will become ripe. The central issue to be considered in evaluating the appropriateness of that rezoning, or of any rezoning, is whether it was done in accordance with the planning of a particular community. That “planning,” the courts have ruled, includes not only the Comprehensive Master Plan of a community, if it has one, but also all other planning and zoning deliberations and documents that have been produced.

The legal logic here is strong: zoning cannot be changed to suit the whim or the latest scheme of policymakers, landowners, or developers. Rather, any changes must be in furtherance of a community’s vision. Zoning, therefore, can change only when that vision changes.

In the landmark 1968 case of Udell v. Haas, the New York Court of Appeals coined a phrase to describe rezoning done wrong. Municipalities, it ruled, cannot “race to the statute books” to change their zoning when a particular opportunity presents itself.

At issue in that case was a decision of the Village of Lake Success Board of Trustees to change a particular zoning district from business to residential A recommendation for such a change was made on the same day that a developer submitted an application for a commercial development the Board viewed as undesirable. The zoning change was enacted a month or so later.

In ruling against the zoning change, the Court stated that it “was not the result of a deliberate change in community policy, but was enacted without sufficient forethought or planning, and was not supported by any particular conditions existing in the area. This race to the statute books was not in accord with sound zoning principles….”

The parallels between Lake Success and Geneseo are close, though not perfect. The first public discussion of a PDD law occurred at the Town Board meeting of March 24, 2005, the same meeting at which Newman’s Big Box plans were unveiled. The PDD law was enacted less than four months later, over public opposition and the opposition of the Town Planning Board. Newman’s proposal could not have been considered without the PDD law.

Though the Town might argue that the surrounding land uses support Big Boxes in the Gateway, earlier articles in this series have clearly demonstrated that it was precisely those surrounding uses that the Town sought to avoid in the Gateway. The planning and zoning for the Gateway are explicit in their opposition to Big Boxes, their concern about traffic, sprawl, and 20A frontage development, and their view of the Gateway as a transitional zone between the intensive retail of the Village and the rural character of the Town.

No previous or subsequent laws, policies, or official pronouncements of the Board have withdrawn the stated concerns about traffic or the express opposition to Big Boxes in the Gateway. No evidence has been collected or presented to suggest those concerns are invalid or that Big Boxes are somehow now needed. Even the passage of the PDD law, the occasion for making statements about a new vision for the Gateway, was accompanied by little more than platitudes about flexibility.

Whether or not the Town laid the necessary foundation for enacting PDD zoning and, should it happen, rezoning the Gateway, cannot be said with certainty at this point.

However, insert “PDD law” for “ordinance No. 60” and what the Court wrote about Lake Success bears a close resemblance to Geneseo’s recent history: “This history of ordinance No. 60 must immediately raise doubts whether this race to the statute books was in accord with sound zoning principles or was a subversion of them for the process by which a zoning revision is carried out is important in determining the validity of a particular action taken.”

Town Enacts Moratorium for Gateway

The headline above could have run in local papers on June 2, 1995. The previous evening, the Town Board unanimously approved the “Town of Geneseo Interim Development Act of 1995,” which froze submission or consideration of any development proposals in the Gateway District for six months.

Never mind that when the Village contemplated exactly the same move for exactly the same reasons a few years ago, many of the same Town (and County) officials who endorsed the Town’s moratorium acted as though the Village had lost its mind (not to mention its right to self-determination).

What really interests me about this moratorium and about the new zoning that followed it, however, is how much it was motivated by opposition to Big Boxes in the Gateway and how much that opposition was motivated by concerns about traffic.

Much like the experience in the Village after the opening of the Super Wal-Mart, the opening of the Wegman’s/Wal-Mart plaza led to very real concerns about Big Box sprawl and the traffic on which it feeds. As a result, the Town moved quickly to draft zoning that prohibited Big Boxes in the Gateway. Taking no chances that a proposal would come in under the wire, the Town then enacted a moratorium to give it breathing room to finish that zoning.

The moratorium, drafted by then and current Town Attorney Jim Coniglio, and supported by current board members David Dwyer and Hop Manapol, expressed concern about threats to “the character” of the area arising from the “increased traffic burden” on 20A. As a result, the moratorium stated, “it is essential that measures be implemented” to limit new curb cuts on 20A and to reduce the intensity of development permissible in the Gateway.

The new zoning that was passed soon after did exactly that. By allowing only one curb cut – now known as Volunteer Road – into the Gateway and by requiring that all development be serviced by that road, sprawl fronting on 20A was zoned out. By prohibiting retail buildings larger than 35,000 square feet, the most traffic-intensive form of development was also zoned out.

So what were the traffic levels that provoked such concern back in the day? According to traffic counts taken by the New York State Department of Transportation (DOT) in 1995, 11,100 cars a day crossed the Town/Village line on Route 20A. A decade later, prior to the opening of the new Super Wal-Mart, that number had increased to more than 19,000 cars. It’s likely that traffic volumes have doubled to 22,000 or more cars by now.

Traffic remains the foremost concern of Geneseo residents. Opening the Gateway to Big Box sprawl promises to add thousands more cars to 20A in the next few years. As far as I am aware, we have no planning and zoning documents enacted by the Town that withdraw its concern about traffic or that identify a different vision for the Gateway.

That being the case, I will say again that it is hard for me to believe it is permissible for zoning that was so well thought out when it was passed a decade ago to be so casually tossed aside by a hastily-passed and poorly considered Planned Development District Law simply because a Big Box developer has come to town with big plans.

[This is the third in a series of articles examining the history of the zoning of the Gateway District and its significance for today’s big box battle. The series will conclude next week.]

Town Planning Board rejected first PDD law in 1994

[This is the second in a series of columns on the history of the Gateway District zoning and its significance for our present Big box Battle.]

You may recall that the Town Board proposed the enactment of a PDD law in the spring of 2005. You may also recall that the Town Planning Board, after initially supporting the idea, withdrew its support until after the master planning process was able to proceed. Their concern was that enactment of such a potentially far-reaching law should at least await the results of a community survey about development.

As we all recall all too well, despite strong opposition to the proposed law at a public hearing, the Town Board passed the law anyway, public opinion be damned. So began our current Big Box battle.

You may not recall that the idea of a planned development district law was considered – and rejected – by a previous Town Planning Board a decade earlier. As discussed in last week’s column, that board, fresh off an earlier Big Box battle – the development of the Wegman’s/Wal-Mart plaza – and deeply concerned about what retail sprawl meant for Geneseo, took decisive action to prevent future sprawl.

The idea of zoning the Gateway as a Planned Development District was apparently first proposed by Pat Rountree, Director of the Livingston County Economic Development Department. At a meeting of the Geneseo Town Planning Board on February 14, 1994, in the midst of the Board’s lengthy deliberations on new zoning for the Gateway, Mr. Rountree suggested the board explore PDD zoning. He was making a suggestion, not giving an endorsement.

With Volunteer Road only a vague hope, PDD zoning was viewed as a way to attract a large enough development and developer to pay to finance a road into the interior of the Gateway. That interior road, which would unlock a 200 acre parcel and allow for development to be kept away from the 20A frontage, was viewed as the key to the development of the Gateway.

Despite some concerns about the advisability of PDD zoning, the Board requested that their planning consultants collect and present additional information about the idea at a future meeting. Over the course of the next several meetings, the Board discussed the merits of PDD and conventional zoning and refined the principles it wanted to see written into the zoning for the Gateway.

As consultant Carol Riccardi told the board, the “sacred cows,” or non-negotiable principles of any future zoning, were “to keep Lima Road residential and … to avoid 20A looking like Henrietta Road.” To achieve these goals, the Board agreed that commercial development should not occur close to 20A and should not face 20A, that retail development should be limited to 35,000 square foot buildings, and that all development should be oriented to and serviced by an “internal road system with single access to Route 20A at the existing traffic light.”

The Board also decided that conventional zoning was better suited to protecting and enforcing this vision than was PDD zoning. Marge Wilkie summed up the discussions with the apt – and remarkably prescient – comment that the problem with a PDD was that “a developer with a good lawyer could come in and put in whatever they wanted.”

And here we are, one reckless Town Board and one scheming developer later, working to see that doesn’t happen.