Let the legal battle over Wal-Mart begin.

The Lawrence City Commission on Tuesday gave preliminary approval to an ordinance temporarily banning construction on the two corners north of Sixth Street and Wakarusa Drive — the same day landowners filed a lawsuit challenging the act.

“The cost of litigating this matter over an extended period of time is not going to be fun for anybody,” said Jim Bowers Jr., a Kansas City, Mo., attorney representing the owners of the land on the northwest corner, 6Wak Land Investments LLC. 6Wak is a partnership of Lawrence developers Bill Newsome and Doug Compton.

City Manager Mike Wildgen said Douglas County District Judge Mike Malone would have a hearing on the matter today. Wildgen and other city officials declined further comment.

“I do not think we’re treating this applicant unfairly,” Commissioner Mike Rundle said during Tuesday’s meeting.

The moratorium rebuffs two building permits — one for a Wal-Mart store and another for smaller, unnamed restaurant — 6Wak had requested for the site.

The lawsuit, filed Tuesday, contests the city’s rejection on May 20 of the building permit for the 6,794-square-foot restaurant.

“The city (has) no valid excuse not to issue the building permit,” Topeka attorney Roger Walter wrote in the complaint.

6Wak is asking the court to order the city to issue the permit and to pay unspecified damages.

But Wal-Mart, not the restaurant, is at the center of the controversy.

Changing definitions

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After two failed attempts at rezoning the site for a bigger Supercenter store — which would have included grocery sales — Wal-Mart earlier this month 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 Lawrence-Douglas County Planning Commission in October 2001 approved plans for a home improvement store on the northwest corner of 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, 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.

After Wal-Mart applied for the building permit, commissioners ordered the moratorium. They want to revise the zoning ordinance so that the “department store” definition is clarified to include Wal-Mart-style retailers.

Fairness questioned

Todd Thompson, Wal-Mart’s Lawrence attorney, on Tuesday asked commissioners to table the moratorium ordinance. He said it wasn’t fair for the city to change rules at this point in the process

“For a City Commission that suggests it is very concerned about procedure and fairness, the proceedings of the last two weeks are not consistent with that notion,” he said.

But Mayor David Dunfield said commissioners always understood Wal-Mart to be a department store and made it clear when they rejected the rezoning.

“I don’t understand how there could be any expectation by the applicant of a building permit after this commission’s action” in March, he said.

Commissioner Sue Hack was the lone opponent of the moratorium ordinance, saying commissioners received the document Tuesday night and hadn’t had time to study it.

Dunfield and Rundle voted for the moratorium, joined by Commissioner Boog Highberger. Commissioner David Schauner was absent.

6Wak and its allies repeatedly warned the lawsuit would be costly.

“This commission has been talking about cutting services and raising taxes,” Newsome said. “I wouldn’t say this is a wise use of taxpayer dollars.”

The court hearing is scheduled for 10:15 a.m. today at the Douglas County Judicial & Law Enforcement Center, 111 E. 11th St. Final approval of the moratorium is expected at the next commission meeting, 6:35 p.m. Tuesday in City Hall, Sixth and Massachusetts streets.