You know that big yellow happy face you see in the Wal-Mart ads? Don’t expect to see it today in Douglas County District Court.

Instead, several grim-faced lawyers will battle over whether the city must issue building permits that would allow construction of a Wal-Mart store at Sixth Street and Wakarusa Drive.

The city contends that zoning for the site prohibits “department stores” — and that the proposed 132,000-square-foot store fits that description. 6Wak Land Investments LLC, the landowner, says the city is playing games with the zoning designations.

“It is 6Wak that bears the brunt of the city’s well-known, but nevertheless wrongful, efforts to block Wal-Mart at any cost,” 6Wak attorney Roger N. Walter wrote in court documents filed last week.

City officials disagree.

The city “has not tried to dismantle anyone’s property rights,” attorney Gerald Cooley wrote in documents filed on behalf of the city. “The city has engaged in no stalling or delaying tactics regarding the permit.”

Now it’s up to Judge Michael Malone to decide. But the court battle has been a year in the making.

History

In August 2002, Wal-Mart proposed a supercenter store to occupy nearly 200,000 square feet at the northwest corner of the intersection. The proposed supercenter would have included a full-service grocery store and an automotive center.

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After the retailer twice failed to receive city approval of rezoning for the project, Wal-Mart in May filed an application to build a 132,000-square-foot store under the terms of the planned commercial development zoning approved two years ago for the site. The scaled-down version wouldn’t have a grocery store or automotive center.

The Lawrence-Douglas County Planning Commission in October 2001 approved plans for a home improvement store at Sixth and Wakarusa, with the proviso that the site never be used for a department store. The home improvement store project never materialized.

When Wal-Mart came forward with its proposal, city planners said the retailer wasn’t a “department store” under city rules; it was a “variety store.” Thus, officials reasoned, Wal-Mart was exempt from the prohibition.

But city commissioners switched gears when they rejected Wal-Mart’s second rezoning request in March. They said Wal-Mart was a “general merchandise store,” a category that includes department and variety stores. As such, they reasoned, the store was prohibited. And in May, commissioners directed city planners to revise the zoning ordinance so that the “department store” definition was clarified to include Wal-Mart-style retailers — and they issued a moratorium on building at the intersection until the zoning revision was completed.

At the same time, the city declined to issue building permits for both Wal-Mart and an adjoining restaurant.

Targeting Wal-Mart?

“There was no legal authority for the city’s refusal to issue the permit,” Walter wrote in court documents. “The refusal to issue was a stalling tactic to prevent 6Wak from making headway … until the city could manufacture a legal apparatus that would keep Wal-Mart out.”

The city, Walter wrote, has “targeted Wal-Mart.”

But Cooley maintains that Wal-Mart meets the city code definitions of a department store: A “retail establishment not less than 20,000 square feet in floor area … with at least 60 percent of the floor area devoted to the display of nonfood items.”

“Based on the proposed plan and application, that definition only serves to bolster (the city’s) conclusion that Wal-Mart is, for the purposes of the city code, a ‘department store,'” Cooley wrote.

The hearing starts at 9 a.m. today at the Douglas County Judicial & Law Enforcement Center, 111 E. 11th St.