The Town of Malta may be heading to court following the filing of a lawsuit claiming the Malta Planning Board’s decision to reject a site plan application for a CVS Pharmacy along Route 9 was unjust.
Paul and Joan Constantine, along with their contractor, Malta Properties, LLC, have filed suit against the seven-member board, alleging the reasons for the determination are not articulated and are not supported by the Record. The lawsuit was filed Friday, May 23, and sets an Article 78 proceeding for Wednesday, July 9, at the Saratoga County Municipal Center in Ballston Spa.
According to the Constantines’ attorney, Michael Hill of Miller, Mannix, Schachner and Hafner, the Article 78 was filed to preserve his client’s rights, and that the Constantines have recently filed a new application.
`We’re trying to pursue the new application, and if our client is successful, we would probably discontinue the Article 78,` said Hill. `Our client’s preference is to obtain approval for the new site plan.`
The Constantines own 2525 Route 9, where they have been planning to build a 13,225-square-foot CVS Pharmacy, complete with drive-through. The application has been appearing before the Planning Board for more than a year.
The suit contests that the application met all zoning ordinances and requirements of the town code. It also states that Malta’s Planning Director Anthony Tozzi influenced the decision when he sent two letters to the Planning Board suggesting the store would not fit into Malta’s downtown plans. On the date of the second letter, April 22, the Planning Board unanimously rejected of the site application.
According to the Constantines’ lawsuit, this alone should be means to annul the board’s decision.
`It was evident that the Planning Board improperly delegated its decision-making authority to the director and adopted his recommendation for site plan disapproval without critical review,` states the lawsuit.
Tozzi disagrees. In a phone interview, he said, `They’re right, I’m not a member of the Planning Board. But just as the Town Board looks to their attorneys and engineers to help guide them, that’s what I did. It was my very strong intent to keep it as factual as possible.`
According to Councilman Peter Klotz of Malta’s Town Board, an Article 78 procedure is really the only avenue for a developer whose application has been denied by the Planning Board to pursue.
`The only way to try to reverse a decision is to appeal to a judge that, on technical grounds, the Planning Board acted improperly,` said Klotz.
The site lies within Malta’s C-1 Downtown District, an area that the town has been hoping to transform into a thriving downtown district for the past 10 years. This planning has spawned Malta’s Downtown Design Standards, a document specifying the proper appearance and location of buildings in the proposed downtown.
The lawsuit alleges that the downtown standards are suggestions, not requirements: `The Downtown Design Standards are advisory in nature, not mandatory requirements and not a valid basis for disapproval of an application.`
According to Tozzi, that isn’t the case.
`There are two kinds of tools to guide design that communities use — guidelines and standards,` he said. `There are policy statements that say ‘must’ or ‘shall,’ and there are other advisory statements that say ‘should’ or ‘may.’ A lot of times people misconstrue the fact that [the standards] aren’t a zoning ordinance, but it’s an adopted policy of the town.`
In the end, it may be the task of a judge to make the determination of how far developers must go to adhere to the standards.
Klotz said he feels that such litigation, in part, is inevitable for an expanding town.
`I think that as Malta continues to be an attractive place for businesses to do business, more and more applicants are going to press us on our standards, regulations and zoning,` he said. `I would not be surprised to see more and more of these as applicants come in and press us to see how firm we are in our regulations and zoning.“