Owners of the land where Wal-Mart wants to build a new store skipped legal steps before filing a lawsuit against the city, a member of the Board of Zoning Appeals said Thursday.

Jason Fizell, a zoning board member, said landowners were legally required to first take their case to his board after the city denied a building permit on the site. He said at Thursday’s meeting that the board should consider entering the case.

“Personally, I feel strongly that (the lawsuit) flies in the face of the authority and role of this body,” said Fizell, who was Lawrence City Commissioner Boog Highberger’s campaign manager.

That political affiliation was noted by Roger Walter, attorney for 6Wak Land Investments LLC, which owns the northwest corner of Sixth Street and Wakarusa Drive.

“Obviously the slate of no-growth (city) commissioners with a political agenda are driving the agenda on this matter,” Walter said Thursday night. “Mr. Fizell is obviously allied with those interests.”

The city has called for a dismissal of the lawsuit, taking Fizell’s position that 6Wak didn’t exhaust all its required “administrative remedies” before suing.

6Wak said such appeals would have been useless.

Walter said Thursday Fizell’s comments were further proof.

It “clearly evidences our position that an appeal to that body would have been a futile act,” Walter said.

¢Wal-Mart lawsuit to take breather (6-4-03)¢ 6News video: Battle over 6th and Wakarusa development could stretch into summer¢ Commissioners seek immunity in testimony (6-3-03)Court documents:¢ Plaintiff’s Petition for Mandamus¢ Defendants’ Motion to Dismiss¢ Defendants’ Motion in LimineRecent stories:¢ City backs Wal-Mart prohibition on Sixth (5-29-03)¢ 6News video: Wal-Mart developers have day in court (5-29-03)¢ Landowners file suit against city (5-28-03)¢ More Wal-Mart stories

6Wak is a partnership of Lawrence developers Doug Compton and Bill Newsome. They filed suit against the city last month in Douglas County District Court after officials refused to grant a permit for a restaurant on the site.

City officials said the restaurant was part of the same plan under which a 132,000-square-foot Wal-Mart also would be built. Wal-Mart, they said, is a department store and thus prohibited from the site by zoning rules. 6Wak said Wal-Mart should be classified as a “variety store,” which would be allowed.

Fizell said the City Commission classified Wal-Mart as a department store before Highberger and the “smart growth” Progressive Lawrence Campaign swept the April 1 election.

Other zoning board members were reluctant to jump into the fray Thursday.

Tim Herndon, the chair, said the board could not tell people when and how to file a lawsuit.

“I … feel very strongly that it is any organization’s or individual’s prerogative to decide for themselves when legal action is warranted,” Herndon said.

And member Scott Henderson warned against politicizing the zoning board.

“What you’re doing here may be right and appropriate, but it comes across as very politically motivated,” he said.

Fizell said he would seek city staff’s opinion on the propriety of the board entering the suit.

The case heads back to court on July 17.