Wal-Mart won't get a building permit from the Board of Zoning Appeals.
Next stop: Court, again.
"We're in this for the long haul," said Bill Newsome, co-owner of the land at Sixth Street and Wakarusa Drive where Wal-Mart wants to build. "We'll see this through to the very end, when we get our building permit."
The board on Thursday voted to uphold the city's August denial of building permits for a 132,000-square-foot Wal-Mart and an unnamed restaurant for the site at the intersection's northwest corner.
Board members said Wal-Mart was clearly a department store, which is prohibited under the terms of the site's zoning. Wal-Mart said it was a "variety store" permitted by the rules.
"The applicants seem to think they have the right to flout the zoning ordinances and Horizon 2020," member Les Hannon said. "The insistence that a large Wal-Mart should be described as a 'variety store' is simply beyond my comprehension."
Board member Scott Henderson -- who quit his job as a Wal-Mart greeter when the retailer announced it would take its case to the board -- was the lone vote to issue the permits.
He said city codes use the term "variety store" without defining it.
"You cannot tell somebody you're not something if you don't know what the something is," he said. "The city used zoning codes when it fit their needs, and opinions when it did not."
The vote came after more than two hours of testimony and discussion, highlighted by presentations by Assistant City Manager Dave Corliss and Wal-Mart attorney Timothy Sear.
Corliss reminded the board that "department stores" were prohibited from the site. Department stores are defined in city codes as a "retail establishment not less than 20,000 square feet in floor area, offering a wide variety of merchandise and services, with at least 60 percent of the floor area devoted to the display and sale of nonfood items."
"It sounds like a Wal-Mart," Corliss said.
But planners never called Wal-Mart a department store during the retailer's two attempts to gain approval of a larger store for the site -- even recommending the plan the second time.
"It's absolutely clear that until Wal-Mart filed an application for a building permit, nobody at City Hall considered Wal-Mart to be a department store," Sear said.
Corliss seemed to suggest that city staffers had failed on that count.
"Maybe (developers) have the right to be frustrated that this definition wasn't pasted on the foreheads of every planner they talked with," he said.
That doesn't give Wal-Mart the right to build, he said.
"Your role tonight is to determine the law," he said. "Not to grade the city."
Sear said city officials never intended to define Wal-Mart as a department store until it was too late.
"If the city truly believed Wal-Mart was a department store," he said, "it would have said so in 2002 and early 2003 when the first applications came in."
West Lawrence neighborhood residents proved feisty in their presentations. One cited Wal-Mart's 2003 filings with the federal Securities and Exchange Commission, in which the retailer said it ranked first among "discount department stores." Another researched telephone listings in more than 100 U.S. cities, to find that Wal-Mart was listed as a "department store" in the vast majority.
"Never did I find Wal-Mart listed as a variety store," Jeanne Newman said. "It's safe to say that millions of Americans find Wal-Mart listed as a department store in their phone books."
Despite their vote, some board members said Wal-Mart officials had not been treated well by the city.
"I think they have real good issues with how they were treated," Bob Santee said. "But we're not voting on that, in my opinion."
Santee joined Hannon, Mike Goans, Jason Fizell and Walter Hicks in rejecting Wal-Mart's challenge. Tim Herndon, chairman of the board and a co-owner of Landplan Engineering, abstained from the vote, saying he had relationships on both sides of the issue.
Wal-Mart now has 30 days to appeal the ruling to Douglas County District Court. Newsome said that appeal would be filed.