Archive for Friday, July 18, 2003

Judge mulls dismissal of suit against city in Wal-Mart case

July 18, 2003


The first legal ruling in the long-running battle involving construction of a Wal-Mart store on West Sixth Street is expected next week.

Douglas County District Judge Michael Malone said Thursday that he would rule next week on the city's request to dismiss a lawsuit filed after officials refused in May to issue building permits for a Wal-Mart store and adjoining restaurant.

Randall Larkin, an attorney for the city, told Malone that 6Wak Land Investment LLC's case should be dismissed because the company had not exhausted all its administrative remedies.

6Wak -- the owner of land at Sixth Street and Wakarusa Drive where Wal-Mart wants to build -- should have gone to the Board of Zoning Appeals before filing suit, Larkin said.

"Where the law provides for administrative remedies, the parties must rely on those remedies before resorting to the courts," he said.

Mary Jo Shaney, an attorney for 6Wak, countered that the city failed to follow its own procedures in refusing to issue the permits and that an appeal to the Board of Zoning Appeals would have been futile.

"There is no legitimate, valid reason for the city not to have issued that permit," she said.

6Wak, a partnership of Lawrence developers Doug Compton and Bill Newsome, filed suit in May after the city declined to issue a building permit for the store and the unnamed restaurant.

The company contends the Lawrence City Commission improperly interfered with Neighborhood Resource Director Victor Torres' duty to issue the permits. The commission declared a moratorium on building at the intersection in May.

The city contends Wal-Mart shouldn't receive the permit because it is a "department store," prohibited by the zoning for the site. Even without the moratorium, city attorneys said, the building permits wouldn't have been issued.

Shaney said Thursday that the city didn't follow its own processes in the case. Developers never received the proper paperwork officially denying the permits, she said.

"The city could have approved or disapproved, but it didn't act," she said. "It was a refusal to do anything."

Larkin said developers knew the permits were denied once city officials informed them they wouldn't be granted.

"It was apparent they weren't going to get the building permit," Larkin said.

But because the city didn't follow its processes, Shaney said, there was no reason to believe the Board of Zoning Appeals -- a body appointed by the commission -- would have fairly considered 6Wak's case.

Wal-Mart has filed its own separate lawsuit in the matter. No hearings are scheduled yet in that case.

Malone said his ruling on the city's dismissal request in the 6Wak case would not come before Monday.

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