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Archive for Saturday, November 1, 2003

Wal-Mart appeals denial of permits

New lawsuits are latest salvo in battle with city

November 1, 2003

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The latest round in the fight between Wal-Mart and the city opened Friday with a pair of new lawsuits being filed.

Wal-Mart and 6Wak Land Investments LLC each filed suit appealing October's decision by the Board of Zoning Appeals to uphold the city's decision in August to deny building permits for the northeast corner of Sixth Street and Wakarusa Drive. 6Wak owns the land. Wal-Mart wants to build there.

In the suits, the plaintiffs said the appeals board, which is appointed by the Lawrence City Commission, unfairly approved the permit denial. 6Wak and Wal-Mart had asked to subpoena witnesses and put on evidence before the board in a trial-type situation. The board denied that request.

"At all times relevant to this matter the BZA acted ... at the direction of the city," 6Wak attorney Roger Walter wrote in the filings.

Assistant City Manager David Corliss said the city would not comment on the new lawsuits.

"The city's practice is to refrain from commenting on the merits of continuing litigation," he said, "because it may be perceived as compromising the proceedings in court."

Friday's lawsuits were just the latest salvo in an ongoing legal battle over construction of a second Wal-Mart store in Lawrence.

6Wak and Wal-Mart filed lawsuits in the spring to force the city to issue permits to build a 132,000-square-foot Wal-Mart and unnamed restaurant at the site. Wal-Mart already has a Lawrence store at 3300 Iowa.

A Douglas County District Court judge ordered the city to make a yes-or-no decision on the permit requests and to the plaintiffs' legal fees; the city is now contesting the $91,000 bill.



In August, the city formally rejected applications for permits. And in October, the Board of Zoning Appeals upheld the decision to deny the permits, saying Wal-Mart was clearly a department store, which is prohibited under terms of the site's zoning. Wal-Mart said it was a "variety store" permitted by the rules.

In the latest suits, 6Wak and Wal-Mart once again asked the judge to order the city to furnish the building permits. They also asked for money -- damages in excess of $75,000 each because the city has deprived the landowners of the use of their property without compensation.

The new suits will add to the city's legal bills in the matter. Officials disclosed this week the city has spent more than $32,000 on its own attorneys' fees contesting Wal-Mart.

The city's legal bills come from payments to two law firms: Gilliland and Hayes of Lawrence; and Lathrop and Gage of Overland Park.

Gilliland and Hayes, headed here by attorney Gerald Cooley, is the city's usual firm. The city pays an annual retainer of $20,000 to the firm, plus $100 an hour.

Lathrop and Gage's attorneys charge as much as $295 an hour, plus as much as $115 an hour for work done by paralegals.

6Wak partner Bill Newsome on Tuesday asked commissioners to reverse course, saying the legal costs were "an enormous black hole for the taxpayers of Lawrence."

Commissioner Sue Hack justified the legal bills by noting commissioners initially rejected Wal-Mart's advances before the April elections that put a "smart growth" majority in power at City Hall.

"I feel that, while it's very costly to do this," she said, "it's the will of the previous commission, as well as this commission."

A date for hearings in the new lawsuits was unavailable Friday.

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