POLAND WALGREENS Magistrate: Initiative isn't to be on ballot
One opponent vows to continue the fight.
By DAVID SKOLNICKand JOHN GOODWIN
VINDICATOR STAFF WRITERS
POLAND -- An initiative to repeal a decision allowing Walgreens to build a 14,560-square-foot drugstore was ordered to be removed from the Nov. 4 ballot by a Mahoning County magistrate.
It appears that there is little left that can by done by those who don't want the drugstore to open in the village center.
Magistrate Gene Fehr and Judge Jack Durkin ruled Tuesday that the county board of elections shouldn't be permitted to print ballots that include the initiative.
James L. Blomstrom, of the Youngstown law firm of Harrington, Hoppe and Mitchell, successfully argued that it would violate state law to have the initiative on the November ballot. Blomstrom represents Visconsi Companies Ltd., the Pepper Pike company developing the project, and David Untch and Gary Susko, both of Poland, who own the project site.
Blomstrom successfully argued that the correct venue to appeal the village board of zoning appeals decision on the Walgreens variance was in common pleas court, not on the ballot.
"This is not an issue for referendum," Fehr said. "The zoning board is an administrative entity, not a legislative entity, and the revised code is clear that administrative decisions aren't subject to referendum."
Size variance
Walgreens received a size variance in May to build a store nearly four times larger than the village maximum of 4,000 square feet for a retail business. Several residents said the store should have applied for a zone change because of the substantial size difference and wanted the matter to be placed on the ballot.
State law permits interested parties -- for example, the developers, property owners, members of the zoning board or those who own property or live near the drugstore site on U.S. Route 224 -- to file a court appeal to a zoning board decision. But that appeal must be filed 30 days after the board makes a decision for it to be valid, Blomstrom said.
Edward Conrad, who lives on McKinley Way, filed a lawsuit in common pleas court in August against the village, village council, the zoning board, Susko and Untch. But Blomstrom said because the suit was filed after the 30-day deadline, he doesn't expect it to be successful.
Village resident Patricia Fithian, who circulated the petitions to have the issue placed on the ballot, said the court decision is sad for the people of Poland and surrounding communities.
"The biggest injustice has been done to the people of Poland Village," she said. "You walk around this community and talk to people and they are overwhelmingly against this. It is very disappointing because they are taking the rights away from the people."
Some support it
Not all village residents are opposed to the store coming here. Councilman Joe Mazur has said the new building would be the catalyst the village needs with a nice two-story facility that would have the appearance of four small store fronts from the outside.
Fithian said residents are now being asked to sign a petition being circulated and available at Wittenauer Pharmacy. Those petitions, also in opposition to Walgreens, are being sent to the company's corporate offices, she said. There have been, according to Fithian, 150 signatures sent so far and about 150 being sent this week. Also, residents opposed to the store are hinging their hopes on Conrad's lawsuit, she said.
"To us, this is still not a dead issue," said Fithian. "We will continue to fight until that store is actually built."
Michael Sciortino, county elections board director, does not dispute that the referendum shouldn't be on the Nov. 4 ballot, but because the board got the petitions for the initiative from the village of Poland, there was no reason for them to initially question if it was a legitimate matter for a public vote.
"Who's the board of elections to determine what's a legislative act if we get something certified by a village council?" Sciortino said. "Now the court has spoken and the board will live with that decision. To be honest with you, it will hopefully clear up an issue with the board and communities as to what's administrative and what's legislative."
Sharon K. Hackett, an assistant county prosecutor who defended the elections board in this matter, had argued that the initiative should have remained on the ballot because a formal objection to it was filed after the Sept. 2 deadline to protest referendums up for consideration in November.
skolnick@vindy.comjgoodwin@vindy.com