Construction of a Wal-Mart store is "impermissible" at Sixth Street and Wakarusa Drive, the city said Wednesday as it opened its legal defense of a temporary building ban at the corner.
Gerald Cooley, the city's attorney, said in court documents the Wal-Mart prohibition extended to a smaller restaurant planned at the site.
City officials last week denied a building permit for the unidentified restaurant, prompting the landowners to file suit Tuesday against the city.
"In that the plans did not comply with the city zoning ordinance, the city ... had no choice but to deny plaintiff's application for the building permit," Cooley wrote in documents filed Wednesday.
But attorneys for 6Wak Land Investments LLC, the landowner, said the city had approved the permit before officials changed their minds.
"The city has no valid reason for not issuing the permit," said Mary Jo Shaney, a Kansas City, Mo., attorney for 6Wak.
6Wak is a partnership of Lawrence developers Doug Compton and Bill Newsome.
It will be at least a week before the dispute is resolved. Douglas County District Judge Mike Malone on Wednesday scheduled an all-day June 3 hearing to hear evidence and arguments in the case.
After two failed attempts at getting the site rezoned to allow a bigger Supercenter -- 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 so-called planned commercial development zoning approved two years ago for the site.
But the Lawrence City Commission in March said a Wal-Mart store fell under a prohibition on department stores on the site. 6Wak and its allies contend Wal-Mart is a "variety store," not a department store, under city codes and thus exempt from the prohibition.
When Wal-Mart applied for its building permit, commissioners initiated a moratorium on construction at the site until city zoning codes could be revised to clearly show the retailer was not allowed to build there. Final approval of the moratorium is expected at the commission's next meeting, set for Tuesday night at City Hall, 6 E. Sixth St.
During Wednesday's hearing with Malone, Shaney said the city was acting improperly.
"We are all for fair procedures, but we are being treated outside this courtroom in a manner ... that we're going to lose our rights," she said. "I don't think the city has played by those fairness rules."
Cooley countered that, under the law, a landowner's right to build on the land wasn't absolute until "substantial construction" had taken place. Even if a city official told 6Wak the building permit would be approved, he said, Kansas law doesn't require the city to issue the permit.
"The city is not (bound) by the misstatements of its officials," Cooley said.
The next court hearing will be 9 a.m. Tuesday at the Douglas County Judicial & Law Enforcement Center, 111 E. 11th St.