A state Supreme Court judge has separated a lawsuit contesting the expansion of an existing Yorktown BJ’s Wholesale Club to include a gas station and the arrival of a Costco Wholesale and members-only gas station into two separate cases.
The lawsuit against the Town of Yorktown was adjourned Dec. 16 at the state Supreme Court in White Plains, with the next scheduled appearance set for Jan. 20. For the newly filed lawsuit against Breslin Realty Assoc., the parent company of the developer of the Costco project, the next appearance was scheduled for Dec. 17.
State Supreme Court Judge Francesca E. Connolly ruled in October that the suit, filed by local independent gas station owners in April amid concerns of the big-box stores’ ability to sell gas at cheaper prices, would be split up because of individual project differences.
In April, Yorktown Smart Growth, a citizens development watchdog group; Yorktown Gas Mart Inc.; and Quick Stop Central Ave. Inc. filed a lawsuit both against the town and Breslin Realty Assoc., the parent company of Retail Store Construction Co, the Garden City developer that plans to construct a 151,000-square-foot Costco location with a 12-pump, members-only gas station on a nearly 19-acre parcel at 3200 Crompond Road. Also challenged in the suit is a re-zoning that would allow for the construction of a gas station at the existing BJ’s store at 3303 Crompond Road.
The Town Board last December approved both the special permit applications filed by Costco and BJ’s that would allow for the construction of gas stations at both properties. The Yorktown Planning Board approved the $60 million Costco plan in November.
The plaintiffs have argued that the projects should be heard together because they would allow “for the first time in Yorktown, the development of retail ‘big-box’ stores in combination with gasoline filling stations.” Â
New Paltz attorney James B. Bacon is representing the group.
According to court documents, the petitioners argue nine legal violations, including that the Town Board is violating its own zoning code, which contends that gas stations can only be paired with small retail stores; both the rezoning of the BJ’s property and the approval of special use permits for both BJ’s and Costco were in contravention of the Yorktown comprehensive plan; and the BJ’s re-zoning is impermissible spot zoning.
The town called for two separate proceedings, arguing that the projects are distinct. While BJ’s is looking to expand on its existing location, the Costco project involves an entirely new warehouse club and gas station on a separate piece of property.
In her analysis, Connolly sided with the town.
“Other than the similarity between the type of business conducted by these entities, the five administrative determinations that are the subject of the petition are, in fact, quite distinct from one another,” Connolly wrote. “The Costco project constitutes an entirely new development, whereas the BJ’s project involves the expansion of an existing retail location.”
“The petitioners’ allegations of spot zoning pertain only to the BJ’s project,” she added.
The suit also names BJ’s; the Yorktown Town Board, the Yorktown Planning Board, UB Yorktown, LLC; Realty Income Pennsylvania Properties Trust 2; 3200 Crompond, Ltd.; and Best Rent Properties 202, LLC. The defendants argued that the big-box stores could sell gas at cheaper prices and cited traffic studies that showed a sharp uptick in congestion should both plans come to fruition.
